Honolulu Construction & Draying Co. v. State, Department of Land & Natural Resources

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Electronically Filed
Supreme Court
SCWC-30484
09-AUG-2013
09:27 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
IN THE MATTER OF THE APPLICATION OF HONOLULU CONSTRUCTION AND
DRAYING COMPANY, LIMITED, to register and confirm title to land
situate at Honolulu, City and County of Honolulu, State of
Hawai#i, ALOHA TOWER DEVELOPMENT CORPORATION,
Respondent/Petitioner,
vs.
STATE OF HAWAI#I, DEPARTMENT OF LAND AND NATURAL RESOURCES,
TRUSTEES OF THE WILLIAM G. IRWIN CHARITY FOUNDATION, SCENIC
HAWAI#I, INC., THE OUTDOOR CIRCLE, HISTORIC HAWAI#I FOUNDATION,
HAWAI#I’S THOUSAND FRIENDS, LIFE OF THE LAND, WILLIAM OLDS, JR.
AND JANE OLDS BOGARD, AND INTERVENOR, CITY AND COUNTY OF
HONOLULU, Respondents/Respondents,
and
SCENIC HAWAI#I, INC.,
Petitioner/Respondent-Cross-Appellee,
vs.
ALOHA TOWER DEVELOPMENT CORPORATION,
Respondent/Petitioner-Cross-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30484; APPLICATION NO. 787; L.C. CASE NO. 01-1-0007)
SCWC-30484
August 9, 2013
RECKTENWALD, C.J., NAKAYAMA, ACOBA, MCKENNA, AND POLLACK, JJ.
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OPINION OF THE COURT BY ACOBA, J.
We hold that the Land Court (the court)1 was right in
awarding attorneys’ fees and costs under the private attorney
general doctrine, see Sierra Club v. Dep’t of Transp. of State of
Hawai#i, 120 Hawai#i 181, 218, 202 P.3d 1226, 1263 (2009) (Sierra
Club II), to Petitioner/Respondent-Cross-Appellee Scenic Hawai#i,
Inc. (Scenic Hawai#i)2, inasmuch as (1) the subject litigation
vindicated the important public policy of preserving public parks
and historic sites,(2) the early and prompt intervention of
Scenic Hawai#i was necessary in light of the efforts by Aloha
Tower Development Corporation (ATDC), Respondent/Petitioner-
Cross-Appellant, represented by the Attorney General (AG), to
rescind the park status of the park involved,3 and (3) a
significant number of people will benefit from the use of the
park and its preservation as a historical site, and from the
general precedential value of this case in enforcing the
dedication of land for public parks and as historic sites.
Because the Intermediate Court of Appeals (ICA) held to
the contrary, we vacate the January 18, 2013 judgment of the ICA
1
The Honorable Gary W.B. Chang presided.
2
The name of the organization Scenic Hawai#i, Inc. is used in the
Record on Appeal and briefs both with and without an #okina.
3
Scenic Hawai#i also absorbed attorneys’ fees of the allied non-
profit organizations who intervened.
2
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filed pursuant to its December 19, 2012 Published Opinion4, and
affirm the March 29, 2010 Final Judgment of the court.
I.
The private attorney general doctrine was first
discussed by this court in In re Water Use Permit Applications,
96 Hawai#i 27, 25 P.3d 802 (2001) (Waiahole II). “[N]ormally,
pursuant to the ‘American Rule,’ each party is responsible for
paying his or her own litigation expenses.” Sierra Club II, 120
Hawai#i at 218, 202 P.3d at 1263 (quoting Fought & Co. v. Steel
Eng’g and Erection, Inc., 87 Hawai#i 37, 50-51, 951 P.2d 487,
500-01 (1998) (brackets omitted)). However, this court has
recognized the private attorney general doctrine as an exception
to this general rule. See, e.g., Sierra Club II, 120 Hawai#i at
181, 202 P.3d at 1226; Maui Tomorrow v. Bd. of Land & Natural
Res., 110 Hawai#i 234, 131 P.3d 517 (2006); Waihole II, 96 Hawai#i
at 29, 25 P.3d at 804 (2001). The private attorney general
doctrine sets forth an equitable rule enabling an award of
attorneys’ fees for vindication of important public rights.
Sierra Club II, 120 Hawai#i at 218, 202 P.3d at 1263 (“within the
equitable powers of the judiciary to provide, is the award of
substantial attorneys fees to those public-interest litigants and
their attorneys . . . .”) (quoting Serrano v. Priest, 20 Cal.3d
25, 141 Cal.Rptr. 315, 569 P.2d 1303, 1313-14 (1977)).
4
The opinion was filed by Associate Judges Daniel R. Foley, Alexa
D.M. Fujise, and Katherine G. Leonard.
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Courts applying the doctrine consider three basic factors: (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.
Id. (quoting Maui Tomorrow, 110 Hawai#i at 244, 131 P.3d at 527)
(brackets omitted)(emphasis added).
II.
A.
In 1930, Helene Irwin Fagan (Fagan) dedicated Irwin
Park5 to the Territory of Hawai#i (Territory) in trust “to be
used as a public park to beautify the entrance to Honolulu
Harbor.” The deed and trust agreement between Fagan and the
Territory included four restrictive covenants (Restrictions and
Conditions) that governed the use and maintenance of Irwin Park,
including preserving and using Irwin Park as a public park. The
pertinent Restrictions and Conditions are as follows:
(1) [t]he [Territory] shall . . . within three (3) years
from and after the date hereof have converted all of said
land, into a public park to be designated as the “Irwin
Memorial Park.”
(2) The [Territory] shall, at all times hereafter, suitably
maintain all of said real property as a public park under
the jurisdiction and control of the . . . Harbor
Commissioners, or their successors in office . . . .
. . . .
(4) In the event that . . . all of said land shall not be suitably
maintained by the [Territory] at any time hereafter as a public
park, or if said public park shall at any time cease to be
designated as “Irwin Memorial Park[,]” or if at any time hereafter
any portion of said land shall be abandoned as a public park,
. . . thereupon forthwith all right, title[,] and interest of the
5
Irwin Park is located in Honolulu, Oahu, mauka of the Aloha Tower
Marketplace and is bounded by North Nimitz Highway, Fort Street, Bishop
Street, and Aloha Tower Drive.
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[Territory], and its successors and thereof, shall forthwith
terminate, and title to all of said real property hereby conveyed
shall forthwith immediately and without further act of either
party to this agreement, their successors or assigns, revert to
[Fagan], and her heirs and assigns, in fee simple absolute.
(Emphasis added.)
On March 13, 1931, Territorial Governor Lawrence M.
Judd issued Executive Order No. 473 (Executive Order) which set
aside and converted the property into a public park and adopted
the Restrictions and Conditions set forth in the deed of Fagan to
the Territory. This Executive Order has been and remains in full
force and effect since March 13, 1931.
Prior to 1951, the Territory, through its Department of
Public Works (DPW), developed plans to improve, construct, and
widen Nimitz Highway. The plans required encroachment upon a
portion of Irwin Park that totaled 24,303 square feet. By a
letter dated August 7, 1951, the Territory, through R. M. Belt,
the then Superintendent of the DPW, wrote to Fagan to request her
consent to the construction and waiver of all of the Restrictions
and Conditions.
On January 25, 1952, Wilford D. Godbold (Godbold), a
Special Deputy Attorney General with the DPW, wrote to Fagan
regarding the Nimitz Highway Plan. Godbold’s letter to Fagan
stated, in relevant part:
In connection with the above referred matter
[regarding construction of the Nimitz Highway] an opinion
has been received from the Territorial Attorney General and
an appraisal has been obtained from the Territorial Board of
Appraisers whereby an exchange has been held proper in
connection with [] Fagan’s reversionary interest in the
portion of Irwin Memorial Park. The Territorial land which
can be exchanged for such interest is of course limited to
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the value of $5,000.00. Pursuant to your request, an appraisal is
now being made of the Hana Airport land by the Territorial Board
of Appraisers . . . .
. . . .
It is therefore requested that you confirm, on the enclosed
copy of this letter, your previous statement that [] Fagan
would waive all of the reversionary provisions contained in
that deed dated November 7, 1930 and recorded in
Registration Book 99, Page 229, in the Bureau of Conveyances
at Honolulu. The necessary instruments to formalize this
waiver and proposed exchange will be prepared as soon as
possible. You will be informed immediately upon the receipt
of the appraisal of the Maui land.
(Emphases added.) Fagan responded to Godbold’s letter on January
31, 1952 by signing a copy of his letter with the following
insertion over her signature:
Waiver is hereby made of any and all damages resulting from
a breach of the conditions contained in that certain deed
above referred to. It is hereby agreed that the restrictive
conditions contained in such deed will be withdrawn and
cancelled.
Nimitz Highway was constructed and the construction
encroached upon Irwin Park. However, the proposed exchange of
Hana land never occurred, and the agreement set forth by Fagan in
the January 31, 1952 letter she wrote in response to Godbold’s
January 25, 1952 letter was never consummated. There was
apparently no further communication or documentation regarding
the proposed exchange.
Fagan died on May 30, 1966 in California. William L.
Olds, Jr (Olds) and Jane Olds Bogart (Bogart) are Fagan’s
grandchildren and heirs. The William G. Irwin Charity Foundation
(Foundation) is named in Fagan’s will as the principal
beneficiary of her residuary estate.
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In 1981, the Hawai#i State Legislature enacted Hawai#i
Revised Statutes (HRS) Chapter 206J. HRS § 206J-4 (Supp. 2008)6
established the ATDC. HRS § 206J-1 (2001), entitled “Findings
and Purpose”, setting forth the purpose of the chapter, states in
relevant part that, “[t]he legislature finds that the area in
downtown Honolulu on the waterfront, including . . . Irwin
Memorial Park . . . is one of the most valuable properties in
downtown Honolulu . . . . The legislature finds and determines
that the purpose of this chapter is in the public interest and
constitutes a valid public purpose.”
Additionally, HRS § 206J-6 (2001), in part, codified
Executive Order 472 by placing limitations on the ATDC with
respect to Irwin Park. HRS § 206J-6(c) provides that “Irwin
Memorial Park shall be retained as a public park subject to the
reservations and conditions set forth in the deed of Helen Irwin
Fagan to the Territory of Hawai#i.” (Emphasis added.)
In October 1999, the Hawai#i Historic Places Review
Board placed Irwin Park on the Hawai#i Register of Historic
Places, which confirmed Irwin Park’s status as a historic
6
HRS § 206J-4(a) states, in pertinent part:
§ 206J-4 Aloha Tower development corporation; established.
(a) There is established the Aloha Tower development
corporation, which shall be a public body corporate and
politic, a public instrumentality, and an agency of the
State. The development corporation shall be placed within
the department of business, economic development, and
tourism for administrative purposes, pursuant to section 26-
35.
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property pursuant to HRS § 6E and Hawai#i Administrative Rules
Title 13, Chapter 198.
B.
The proceedings underlying the instant request for
attorneys’ fees may be summarized briefly. On May 15, 2001, ATDC
filed a Petition in the court to expunge the deed restriction on
Irwin Park requiring that it be preserved as a public park
(Petition). The Certificate of Service attached to the Petition
states that it was served upon John W.K. Chang, the attorney for
Party-in-Interest State of Hawai#i (the State), and “Jane Fagan
Olds and William Olds, Trustees of the William G. Irwin Charity
Foundation.”
On May 15, 2001, ATDC filed an ex parte application for
an Order to Show Cause (Order to Show Cause) giving the parties
in interest, including the State and the Foundation notice of the
Petition, and an Order to Show Cause was issued on the same date
by the court. On June 8, 2001, Scenic Hawai#i and four other
preservation organizations7 moved the court for leave to intervene
in the litigation in order to preserve Irwin Park as a public
park. On the same date, Scenic Hawai#i filed an ex parte
application to shorten time on its Motion to Intervene, stating
that if the motion to shorten time was not granted, “the only
7
The Outdoor Circle, Historic Hawai#i Foundation, Hawai#i’s Thousand
Friends, and Life of the Land were referred to as “the Preservation
Organizations” in the court proceedings. In the interest of simplicity, the
organizations are referenced together as “Scenic Hawai#i” when discussing the
proceedings below. The Preservation Organizations are Hawai#i non-profit
corporations.
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parties who will be present in [c]ourt on [the date of the Order
to Show Cause hearing] will be the State of Hawai#i and possibly
the [] Foundation.” On June 14, 2001, ATDC filed a Memorandum in
Opposition to Scenic Hawai#i’s Motion to Intervene. Also on June
14, 2001, the Foundation answered ATDC’s May 15, 2001 Petition,
stating, inter alia, that “the ‘reservations and conditions’ in
the Fagan deed have never been waived, released or abandoned by
the Grantor nor her successors and assigns.”
On June 15, 2001, the City & County of Honolulu (City)
moved to intervene. The City’s Memorandum in Support of its
Motion to Intervene stated, inter alia, that, “[o]nce the
restrictive covenants are removed, it is the City’s understanding
that ATDC intends to replace [Irwin] Park and parking area with a
multi-level parking structure.” In support of its right to
intervene, the City’s memorandum further stated that “[i]t cannot
be disputed that the City has an obligation, arguably a
responsibility, to take actions which substantially advance
legitimate public interests, including protecting and preserving
open space and the health and welfare to the public that open
spaces in urban areas afford.” The City’s memorandum also went
on to argue that its intervention was proper because its interest
was inadequately represented by the existing parties to the suit.
On this point, the City alleged that “even if the heirs of []
Fagan were properly served, their interest may not be parallel
with that of the City in preserving the Park,” because, “[t]he
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heirs, who apparently live outside the State of Hawai#i, may
instead prefer to reach a monetary settlement with ATDC to waive
the restrictive covenants in the deed.” The City also
acknowledged that Scenic Hawai#i “at least to the extent of
preserving [Irwin] Park, [has] similar interests as the City.”
On June 18, 2001, the court granted Scenic Hawai#i’s
Motion to Intervene. On June 27, 2001, Bogart and Olds, as
individuals, filed their Answer and Response to the Petition of
May 15, 2001, asserting an interest in Irwin Park and in the
restrictive covenant that ATDC sought to expunge. At a hearing
on July 2, 2001, the City’s Motion to Intervene was granted.
On April 2, 2002, the court, in response to a motion by
ATDC, filed an Order to Show Cause ordering the State and DLNR to
appear as parties in interest. On May 2, 2002, the State and
DLNR filed a Response to the Order to Show Cause. The State and
DLNR responded in support of ATDC’s filing of the Petition.
In November and December 2002, a non-jury trial was
held. At the close of trial on December 12, 2002, the court
orally denied the petition, stating:
Therefore for these and other good cause shown in the record
the court concludes that the restrictive covenants and
reversionary interests contained in the 1930 deed are still
valid and in full force and effect. Since the covenants and
reversionary interests are still in effect, there is an
absence of good cause to grant the [P]etition. Therefore
the [P]etition is denied.
Scenic Hawai#i8 filed a Motion for Attorneys’ Fees and
8
The Motion for Attorneys’ Fees and Costs was filed by all the five
“Preservation Organizations.” However, in its Application for a Writ of
Certiorari (Application) to this court, Scenic Hawai#i states that “Scenic
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Costs on August 28, 2008, “pursuant to Rules 7 and 54(d) of the
Hawai#i Rules of Civil Procedure and the common law principles
set forth in Maui Tomorrow[], 110 Hawai#i 234, 131 P.3d 517(2006).” Olds and Bogart and the Foundation filed Motions for
Joinder in Scenic Hawai#i’s Motion for Attorneys’ Fees and Costs.
The Motion for Joinder filed by Olds and Bogart stated, in part,
that
[i]n seeking to undo a private contract with [] Fagan,
[ATDC] actually violated the public trust that resulted
therefrom, and undermined the State’s own parens patriae
obligations. [Olds and Bogart] could not stand idly by.
For [Olds and Bogart], and their family [F]oundation [], the
Petition was nothing less than an attempt to impair
contractual obligations owing to the Irwin Family, as well
as a violation of the public trust.[ 9]
ATDC filed a Motion in Opposition to both motions for attorneys’
fees on October 31, 2008.
The court filed its “Findings of Fact, Conclusions of
Law, and Order” on November 3, 2008.10 In its Findings of Fact,
the court stated that Fagan’s January 31, 1952 response to
Godbold’s request to withdraw the Restrictions and Conditions did
not constitute a waiver of those Restrictions and Conditions.
Hawai#i alone, paid for all of the attorneys’ fees and costs.”
9
Olds and Bogart and the Foundation are not requesting attorneys’
fees on appeal, instead, the issue on appeal deals exclusively with Scenic
Hawai#i’s request for attorneys’ fees and costs.
10
The November 3, 2008 Findings of Fact, Conclusions of Law, and
Order recognizes six respondents to the Petition: (1) William L. Olds, Jr.,
Jane Olds Bogart, William L. Olds, III, George T. Cronin, and Anthony O.
Zanze, as Trustees of the William G. Irwin Charity Foundation; (2) William L.
Olds, Jr. and Jane Olds Bogart, individually, as natural heirs of Fagan and
persons with an interest in effecting her registered restrictions and
conditions; (3) Scenic Hawai#i, The Outdoor Circle, Historic Hawai#i
Foundation, Hawai#i’s Thousand Friends, and Life of the Land, as “Preservation
Organizations”; (4) The City and County of Honolulu; (5) the State of Hawai#i;
and (6) the Department of Land and Natural Resources.
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Rather, the court determined, Fagan’s response constituted “an
agreement to agree (to exchange a waiver for Hana land), not the
waiver itself.” The court went on to state that, “[t]he
agreement into which [] Fagan agreed to enter, set forth in the
January 31, 1952 language inserted by [] Fagan in her response to
attorney Godbold’s January 25, 1952 letter, was never
consummated.” In its Conclusions of Law, the court held, inter
alia, that the restrictive covenants were still in effect.
10. For the foregoing reasons, this [c]ourt finds and
concludes that the Restrictions [and] Conditions contained
in the Indenture from [] Fagan to the Territory of Hawai#i
dated November 7, 1930 . . . as well as in Executive Order
No. 472 issued on March 13, 1931 . . . are still valid and
remain in full force and effect. The Territory did not
acquire any interest in [] Fagan’s reversionary interest in
the Property.
11. ATDC is not entitled to any relief pursuant to its
Petition filed herein. The subject deed restriction shall
not be expunged from Land Court Certificate of Title No.
310,513. The Property is, and remains, subject to the
restriction that it be used as a public park to beautify the
entrance to Honolulu Harbor.
(Emphases added.) The court’s Order denied the Petition with
prejudice and stated that, “[t]o the extent that recovery of
attorney’s fees and costs may be awardable under law,
[r]espondents may . . . file a motion for attorney’s fees and
costs.”
On November 5, 2008, Scenic Hawai#i filed a Reply
Memorandum in Support of its Motion for Attorneys’ Fees and
Costs. At a hearing on November 10, 2008, the court requested
supplemental briefing on the issue of attorneys’ fees. On June
26, 2009, the court entered an Order Granting in Part and Denying
in Part Scenic Hawai#i’s Motion for Attorneys’ Fees and Costs.
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The order stated, in part, that “Scenic Hawai#i has satisfied the
three-prong test of the private attorney general doctrine” but
that the request for fees was “denied without prejudice” to
Scenic Hawai#i presenting billing entries for fees, rather than
“block billing.” (Emphasis in original.)
Scenic Hawai#i filed its “Renewed Motion for Attorney’s
Fees” (Renewed Motion) on December 23, 2009. ATDC opposed Scenic
Hawai#i’s Renewed Motion. On February 24, 2010, the court
granted Scenic Hawai#i’s Renewed Motion in the amount of
$130,674.09 for attorney’s fees. On March 29, 2010, the court
entered its Final Judgment in favor of Scenic Hawai#i in the
total amount of $135,637.69, which represented attorneys’ fees
and costs.
III.
ATDC appealed to the ICA on April 28, 2010 and Scenic
Hawai#i cross-appealed on May 12, 2010. On appeal, the ICA
recognized three factors that must be considered in deciding
whether to apply the private attorney general doctrine: “(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.” Id.
at 73, 293 P.3d at 146 (emphasis in original) (citing Sierra
Club II, 120 Hawai#i at 218, 202 P.3d at 1263).
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In connection with the first prong, the ICA held that
“[t]he public policy advocated by Scenic Hawai#i ... had no
connection to or impact on the factual dispute regarding whether
Fagan had waived the deed restrictions or gifted the reversionary
interest,” because the issues “concerned whether ATDC had
demonstrated it was entitled to . . . expunge the deed
restrictions on the Property[.]” Id.Regarding the second prong, the ICA held that “Scenic
Hawai#i did not serve ‘as the sole representative of the
vindicated public interest.’” Id. at 75, 293 P.3d at 148
(quoting Waiahole II, 96 Hawai#i at 31, 25 P.3d at 806)
(citations omitted). Thus, it was “unnecessary for Scenic
Hawai#i to respond to ATDC’s Petition,” so the court “need not
consider the magnitude of the burden resulting from Scenic
Hawai#i’s intervention[.]” In re Honolulu Const., 129 Hawai#i at
75, 293 P.3d at 148. Finally, the ICA held that there was “no
need to address” the third prong because Scenic Hawai#i failed to
satisfy the first or second prong. Id. The court’s March 29,
2010 Final Judgment was reversed as to its award of attorneys’
fees and costs, but was “affirmed in all other respects.”11 Id.
11
The ICA also stated that (1) “[n]one of the parties challenged the
[] [c]ourt’s decision on the merits of ATDC’s petition,” (2) none of the
parties “contend[ed] that the [] [c]ourt erred when it determined that Scenic
Hawai#i had standing and would be permitted to intervene in this Land Court
registration matter[,]” and (3) “none of the State parties argued that
sovereign immunity bars an award of attorney’s fees against a State agency
herein (or attempted to distinguish this case from the statutory waiver of
sovereign immunity that was held to apply in Sierra Club II).” In re Honolulu
Const., 129 Hawai#i at 75 n.5, 293 P.3d at 148 n.5. “Therefore,” the ICA
noted, “we do not address these issues and this opinion should be construed
accordingly.” Id. We agree that sovereign immunity was not raised and
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IV.
In its Application, Scenic Hawai#i asks “[w]hether the
[ICA] gravely erred in holding that the [] [c]ourt abused its
discretion [in] awarding Scenic Hawai#i its attorneys’ fees and
costs under the Private Attorney General Doctrine [].”
V.
Scenic Hawai#i’s Application essentially argues that
the court did not abuse its discretion in granting fees, because
Scenic Hawai#i did in fact meet all three prongs of the private
attorney general doctrine. ATDC’s April 3, 2013 Response argues
that the ICA correctly applied the three prongs of the private
attorney general doctrine pursuant to Hawai#i precedent, and that
the ICA properly reviewed the award of attorneys’ fees in holding
that the court had abused its discretion.
Scenic Hawai#i filed a Reply with this court on April
10, 2013, stating, inter alia, that “[t]he City [] rode the coat-
tails of Scenic Hawai#i[,]” and that “[a]dditionally, even though
[the court] ordered the State and the DLNR to appear, they took
no active role.” Thus, Scenic Hawai#i concludes, “the ICA
mischaracteriz[ed] the ‘vigorous’ involvement of the other
parties and the lack of any reason for Scenic Hawai#i to remain
involved in the matter after [the other parties] joined.”
VI.
In its Opening Brief to the ICA, ATDC challenged the
therefore is not involved in this case.
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application of the “abuse of discretion” standard to trial court
determinations involving the private attorney general doctrine
and argued in favor of de novo review. In its Response filed
with this court, ATDC briefly reiterates this argument.
Sierra Club II could be construed as applying a de novo
standard of review as to whether the plaintiff satisfied the
private attorney general doctrine, and an abuse of discretion
standard as to the monetary amounts that were awarded. See
Sierra Club II, 120 Hawai#i at 220-30, 202 P.3d at 1265-75.
Traditionally, however, an award of attorneys’ fees and costs is
reviewed for abuse of discretion. An abuse of discretion occurs
“where the trial court has clearly exceeded the bounds of reason
or disregarded rules or principles of law or practice to the
substantial detriment of a party litigant.” Maui Tomorrow, 110
Hawai#i at 242, 131 P.3d at 525 (citations and internal quotation
marks omitted). Sierra Club II does also state that “‘[t]he
trial court’s grant or denial of attorneys’ fees and costs is
reviewed under the abuse of discretion standard[,]’” Sierra Club
II, 120 Hawai#i at 197, 202 P.3d at 1242 (original brackets
omitted) (citations omitted) (quoting Kamaka v. Goodsill Anderson
Quinn & Stifel, 117 Hawai#i 92, 105, 176 P.3d 91, 104 (2008)).
We retain the abuse of discretion standard, noting however that
we review de novo whether the trial court disregarded rules or
principles of law that arise in deciding whether or not a party
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satisfies the three factors of the private attorney general
doctrine.
VII.
A.
As noted, the first criterion of the private attorney
general doctrine is “the strength or societal importance of the
public policy vindicated by the litigation[.]” Sierra Club II,
120 Hawai#i at 218, 202 P.3d at 1263 (citations omitted).
Inasmuch as the court’s ruling was integral to the future use of
Irwin Park as a public park and historic site and ATDC’s
statutory grant of authority pursuant to Chapter § 206J, Scenic
Hawai#i’s intervention in the underlying action satisfies the
first prong of the private attorney general doctrine.
In the instant case, the issues that arise with respect
to the first prong appear to be twofold. Initially, there is a
question of the “strength or societal importance of the public
policy” advocated by Scenic Hawai#i. Sierra Club II, 120 Hawai#i
at 218, 202 P.3d at 1263 (citations omitted). In its
Application, Scenic Hawai#i characterizes the public policy it
vindicated as both “preserving Irwin Park for all residents and
visitors” and “holding ATDC and the State to its statutory duty
to preserve [Irwin] Park for the public good,” specifically, the
State’s statutory duty to “retain the park ‘as a public park to
beautify the entrance to Honolulu Harbor.’”
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In Waiahole II, this court held that the first prong of
the doctrine was satisfied because the case “involved
constitutional rights of profound significance.” 96 Hawai#i at
31, 25 P.3d at 806. In that case, the underlying action, In re
Water Use Permit Applications, 94 Hawai#i 97, 9 P.3d 409 (2000)
(Waiahole I), had established, inter alia, that in light of the
mandate of Article XI, sections 1 and 7 of the Hawai#i
Constitution, the State Water Code did not supplant or override
the public trust doctrine in Hawai#i, and that ground water was
included as part of the water resources trust. Id. at 131-35, 9
P.3d at 443-449.
This court’s opinion in Waiahole II also quoted a long
passage from the California Supreme Court’s decision in Serrano,
setting forth the policies underlying the doctrine. Waiahole II,
96 Hawai#i at 30, 25 P.3d at 805. It stated that the goal of the
doctrine is to award attorneys’ fees to “deserving interests”
“‘to the end that support may be provided for the representation
of interests of similar character in future litigation.’” Id.
(quoting Serrano, 569 P.3d at 1313-14). This court applied the
doctrine in Sierra Club II, and concluded that the plaintiff had
vindicated an important public policy where it “establish[ed] the
principle of procedural standing in environmental law in Hawai#i
and clarif[ied] the importance of addressing the secondary
impacts of a project in the environmental review process pursuant
to HRS Chapter 343.” 120 Hawai#i at 220, 202 P.3d at 1265.
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Simply because this case relates to a discrete piece of
property does not mean that Scenic Hawai#i has not advocated an
important public policy. The preservation of public parks and
historic sites in the State represents a significant public
concern. See HRS § 6E-1 (2009) (“The Constitution of the State
of Hawai#i recognizes the value of conserving and developing the
historic and cultural property within the state for the public
good.”); HRS § 184-2(3) (2011) (providing for new parks and
parkways to be established). Thus, Scenic Hawai#i’s vindication
of this public policy with respect to one particular public park
and historic site, in this case, Irwin Park, would satisfy the
first prong of the doctrine. Furthermore, the award of fees for
the preservation of this particular park and historic site would
further an ultimate goal of the private attorney general
doctrine, as articulated in Waiahole II, “that support may be
provided for the representation of interests of similar character
in future litigation.’” 96 Hawai#i at 30, 25 P.3d at 805
(quoting Serrano, 569 P.3d at 1313-14).
The second issue with respect to this prong, however,
is the question of whether Scenic Hawai#i in fact “vindicated”
this important public policy through the underlying litigation.
It was on this issue that the ICA made its determination that
Scenic Hawai#i did not satisfy the first factor, holding, as
noted, that the public policy advocated by Scenic Hawai#i had no
connection to the factual dispute at issue in the underlying
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case. In re Honolulu Const., 129 Hawai#i at 74, 293 P.3d at 147.
The ICA further held that “the [] [c]ourt’s ruling on the
Petition was only tangential to the ultimate disposition and
future use of Irwin Park and did not include any determination as
to whether ATDC’s intended use was a violation of HRS § 206J-6 or
in contravention of Hawai#i Historic Preservation Law, HRS
Chapter 6E.” Id. at 74-75, 293 P.3d at 147-48.
Respectfully, this interpretation of the first prong of
the doctrine is too restrictive. Considering “the strength or
societal importance of the public policy vindicated by the
litigation,” Sierra Club II, 120 Hawai#i at 218, 202 P.3d at 1263(citations omitted), requires that the litigation have vindicated
a public policy, but does not require that the public policy be
the subject of the litigation itself. Instead, an organization
may seek to vindicate public policy through litigation on
discrete issues, so long as the resolution of the litigation in
favor of the organization vindicates a public policy goal, and
that policy satisfies the first prong of the test. Black’s Law
Dictionary defines “vindicate,” in relevant part, as “[t]o
assert, maintain, or affirm (one’s interest) by action[,]” as
well as “[t]o defend (one’s interest) against interference or
encroachment[].” Black’s Law Dictionary 1705 (9th ed. 2009). It
is clear that, in intervening in the underlying action in the
instant case, Scenic Hawai#i was “assert[ing], maintain[ing], or
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affirm[ing]” the important public policy goal of preserving
public parks and historic sites. Id.ATDC argues that public policy goals were not
vindicated by the litigation because they were not the subject of
the litigation. Under the facts of this case, it can hardly be
said that “[a] public interest in preserving open spaces had
nothing to do with the factual question of whether Mrs. Fagan had
waived the deed restriction.” Instead, as Scenic Hawai#i urges,
“the Petition . . . directly and necessarily implicated the
public policy issue of the preservation of Irwin Park.” There
was no other purpose to ATDC’s Petition than to expunge the deed
restriction requiring that the land be designated as a public
park.
At the heart of the Petition was ATDC’s attempt to
abrogate the deed provision that required the Irwin Park property
to remain a park. The effect of the expungement sought by ATDC
would be to repeal the mandate in HRS § 206J-6(c) and to nullify
the property’s placement on the list of historic places.
Therefore, to deny Scenic Hawai#i fees would be an overly-
formalistic application of what it means to vindicate an
important public policy. Scenic Hawai#i has thus satisfied the
first criterion of the doctrine.
B.
1.
The second criterion of the doctrine considers “the
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necessity for private enforcement and the magnitude of the
resultant burden on the plaintiff[.]” Sierra Club II, 120
Hawai#i at 218, 202 P.3d at 1263. In explaining Hawai#i’s
adoption of the doctrine, Waiahole II stated that:
“In the complex society in which we live it frequently
occurs that citizens in great numbers and across a broad
spectrum have interests in common. These, while of enormous
significance to the society as a whole, do not involve the
fortunes of a single individual to the extent necessary to
encourage their private vindication in the courts.”
96 Hawai#i at 30, 25 P.3d at 802 (quoting Serrano, 569 P.2d at
1313). In Waiahole I, the plaintiffs contested a decision by the
Commission on Water Resource Management in which it apportioned
water rights “for various agricultural, leeward offstream, and
nonagricultural uses, established a non-permitted ground water
buffer, and denied various water use permits.” Maui Tomorrow,
110 Hawai#i at 244, 131 P.3d at 527 (citing Waiahole I, 94 Hawai#i
at 116-17, 9 P.2d at 428-29).
In Waiahole II, this court held that the action brought
by plaintiffs in Waiahole I did not satisfy the second prong of
the private attorney general doctrine because the plaintiffs did
not “single-handedly challenge[] a previously established
government law or policy,” but, rather, “challenged the decision
of a tribunal in an adversarial proceeding not contesting any
action or policy of the government.” Waiahole II, 96 Hawai#i at
31-32, 25 P.3d at 806-07. The plaintiff “represented one of many
competing public and private interests in an adversarial
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proceeding,” and thus was not the sole representative challenging
an established governmental policy. Id.
In Maui Tomorrow, this court similarly held that the
plaintiff’s action could not satisfy the second prong of the
doctrine. There, this court noted that the State had not
abandoned or actively opposed the plaintiff’s cause, but rather,
that the Board of Land and Natural Resources “was under the
impression, although erroneous, that the duty was to be carried
out by another agency.” 110 Hawai#i at 245, 131 P.3d at 528.
Thus, in Maui Tomorrow, the agency did not abrogate its duty, but
rather disagreed with the plaintiffs about which agency was
required to satisfy that duty. Id.In Sierra Club II, on the other hand, this court held
that the plaintiff did satisfy this prong of the doctrine because
it was necessary for the plaintiff to bring the action to enforce
the duties owed by Department of Transportation (DOT) to the
public under the Hawai#i Constitution. 120 Hawai#i at 220, 202
P.3d at 1265. Further, it held that Sierra Club and the other
plaintiffs were “solely responsible for challenging the DOT’s
erroneous application of its responsibilities under HRS chapter
343.” Id. This court distinguished the facts from Waiahole II
and Maui Tomorrow by noting that in the underlying case, the DOT
had not recognized its duty, and instead “wholly abandoned” that
duty. Id. at 221, 202 P.3d at 1266.
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The ICA held, as discussed, that Scenic Hawai#i could
not satisfy this prong for two reasons. First, it held that
there were “actual respondents [Olds, Bogart and the Foundation]
who vigorously litigated their private interests.” In re
Honolulu Const., 129 Hawai#i at 75, 293 P.3d at 148. Second, it
held that, “even if we assume that the public’s interests were at
issue in this case and the State did not represent the general
public’s interest in maintaining Irwin Park in its current form,
it appears that the City’s intervention eliminated any need for
‘private enforcement.’” Id. (emphasis added).
The private attorney general doctrine is an equitable
rule. Sierra Club II, 120 Hawai#i at 218, 202 P.3d at 1263. As
such, the court may grant attorneys’ fees where equitable so long
as the party requesting such fees satisfies the three prongs of
the doctrine. It is not axiomatic that if a private party is
named as a respondent or defendant in a particular litigation, an
organization representing the public interest in the same
litigation can never recover attorneys’ fees pursuant to the
private attorney general doctrine. Rather, a party representing
the public interest along with other parties may still be “solely
responsible” for advocating the public interest, see Sierra Club
II, 120 Hawai#i at 220, 202 P.3d at 1265, despite the fact that
private parties are named in the litigation.
2.
In the instant case, Scenic Hawai#i alleges that at the
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time it intervened in the litigation, it was not evident that any
other private or public entities would be advocating for the
public interest. When Scenic Hawai#i moved to intervene, it was
not clear if the private entities were in fact “vind[icating]”
the public interest in the courts. 96 Hawai#i at 31-32, 25 P.3d
at 806-07. As part of its Supplemental Briefing in Support of
Motion for Attorneys’ Fees and Costs, filed on January 20, 2009,
Scenic Hawai#i attached Declarations of Olds and Bogart.
Bogart’s Declaration stated that, “[u]ltimately we did not
approve of the State of Hawaii’s plans for Irwin Park, and we
sided with Scenic Hawai#i in an effort to preserve Irwin Park as
a park for the citizens of Honolulu.” (Emphasis added.) It
further stated that, “[b]ut for the efforts of Scenic Hawai#i and
the other Preservation Organizations, we would not have been made
aware of the significance of Irwin Park and its importance to the
residents of Honolulu.” (Emphasis added.) Olds’ Declaration
contained similar statements. The Declarations of Olds and
Bogart state that each of them were also authorized to speak on
behalf of the Foundation.
Moreover, at the time of Scenic Hawai#i’s intervention
in the suit, the government entity, ATDC, actively opposed Scenic
Hawai#i’s cause through its Petition. This is distinguishable
from Maui Tomorrow, where, as noted, this court denied attorneys’
fees in part on the premise that the Board of Land and Natural
Resources had not wholly abandoned or actively opposed the
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plaintiff’s cause. See 110 Hawai#i at 245, 131 P.3d at 528. As
related, the State and DLNR responded to the court’s Order to
Show Cause by indicating their support of ATDC’s filing of the
Petition. Thus, the State and DLNR also opposed Scenic Hawai#i’s
cause once they joined in the litigation. The City had
intervened in the suit as well and joined in the Motions to
dismiss filed by Scenic Hawai#i and the Foundation’s Motions to
Dismiss the Petition to Expunge the Deed Restriction. But Scenic
Hawai#i maintains that the City, to some extent, rode the
coattails of Scenic Hawai#i after the City’s intervention in the
suit.12
At its hearing on March 27, 2009, the court heard
arguments as to whether Scenic Hawai#i could satisfy the second
prong of the doctrine. The court, taking into consideration the
Olds and Bogart declarations, stated that it was inclined to
award Scenic Hawai#i fees and costs from the beginning of its
involvement in the suit until its “active participation was not
necessary.” At the time, the court deemed this to be “when
respondents Olds and Bogart filed their answer contesting the
[P]etition.” As to Scenic Hawai#i’s participation after the
involvement of Olds and Bogart, the court stated that “[i]n light
12
After Serrano, California courts have held that California’s
statute setting out three factors analogous to our private attorney general
doctrine, “does not proscribe payment of attorneys fees to private plaintiffs
who successfully initiate and try a private lawsuit for the public benefit
solely because the [government has] initiated a similar action which is
consolidated for trial with that brought by such plaintiff.” Comm. to Defend
Reproductive Rights v. A Free Pregnancy Center, 280 Cal.Rptr. 329, 336 (Cal.
Ct. App. 1991) (emphasis added); see In re State Water Resources Control Bd.
Cases, 73 Cal.Rptr.3d 842, 849 (Cal. Ct. App. 2008).
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of such protection for the public interest, there was no
necessity for [Scenic Hawai#i] to participate fully and actively
in the opposition to the petition beyond a modicum of
monitoring.” Later, however, the court reconsidered this
position, and concluded that Scenic Hawai#i was entitled to an
award of all its “reasonable attorney’s fees and costs.”
There was a sound basis for the court’s award of
attorneys’ fees and costs for Scenic Hawai#i’s participation in
the suit. Here, according to the signed declarations of Olds and
Bogart, “[b]ut for the efforts of Scenic Hawai#i,” the private
parties “may not have thus participated in this litigation.”
This does not imply that organizations or parties representing
the public interest may always recover attorneys’ fees if they
become involved in a lawsuit prior to the active involvement of
any other parties, thereby creating a race to intervene.
But here, according to the signed declarations of Olds
and Bogart, it was Scenic Hawai#i that made them aware of the
significance of Irwin Park. Scenic Hawai#i moved swiftly to
intervene before Olds and Bogart answered the Petition. There
was only a brief time between when the ATDC filed its Petition on
May 15, 2001, and the date of the Order to Show Cause hearing, on
June 18th, 2001, as noted by Scenic Hawai#i. Accordingly, had
Scenic Hawai#i not moved to intervene, ATDC might very well have
prevailed in the face of a lack of opposition, abrogating not
only the legislative mandate that Irwin Park remain a park, see
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HRS § 206J-6(c), but also demolishing the park as a historic
site. Under these circumstances, Scenic Hawai#i is entitled to
attorneys’ fees as awarded by the court, pursuant to the private
attorney general doctrine.13
C.
As to the third criterion, “the number of people
standing to benefit from the decision,” Sierra Club II, 120
Hawai#i at 218, 202 P.3d at 1263 (citations omitted), this court
has concluded that prong is satisfied where the plaintiffs had
vindicated procedural rights related to environmental review.
See Sierra Club v. Dept. of Transp., 115 Hawai#i 299, 304, 167
P.3d 292, 297 (2007) (Sierra Club I). In Waiahole II, this court
recognized that the third prong of the doctrine is met where “all
citizens of the state, present and future, stood to benefit from
the decision.” 96 Hawai#i at 31, 25 P.3d at 806 (citing Waiahole
I, 94 Hawai#i at 198, 9 P.3d at 510 (recognizing the “ultimate
importance of these matters to the present and future generations
of our state”)).
To reiterate, in Sierra Club II, this court held that
the underlying case provided a public benefit, because “it [was]
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
13
We observe that ATDC did not challenge the amount of fees granted
by the court or contend that Scenic Hawai#i’s fees should be apportioned
between fees incurred before Olds and Bogart filed their Answer and fees
incurred thereafter.
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[would] benefit large numbers of people over long periods of
time.” 120 Hawai#i at 1266, 202 P.3d at 221. This court further
pointed to the opinion in the underlying case, which stated
explicitly that, “‘[a]ll parties involved and society as a whole
would have benefitted had the public been allowed to participate
in the review process of the Superferry project, as was
envisioned by the legislature when it enacted the Hawai#i
Environmental Policy Act.’” Id. (quoting Sierra Club I, 115
Hawai#i at 304, 167 P.3d at 297).
Our case law on the private attorney general doctrine
has not yet addressed a situation where the public policy
involves a discrete property or historic site open to the general
public. In this case, benefits would clearly accrue to residents
and tourists who visit the Aloha Tower area through the continued
preservation of Irwin Park. The court’s Conclusions of Law in
the underlying litigation support this view, stating that “[t]he
Property is, and remains, subject to the restriction that it be
used as a public park to beautify the entrance to Honolulu
Harbor.”
Scenic Hawai#i cites to Bitterroot River Protective
Ass’n v. Bitterroot Conservation District, 251 P.3d 131 (Mont.
2011), a Montana Supreme Court case in support of its argument as
to the third prong. In Bitterroot, the Montana court considered
the same three factors in determining whether a group seeking
declaration that a particular waterway was subject to the state’s
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Natural Streambed and Land Preservation Act and Stream Access Law
was entitled to attorneys’ fees. 251 P.3d at 140. Bitterroot
affirmed the district court’s determination that the decision
clarified not only the status of the waterway at issue in the
underlying litigation, but also the status of other public waters
in the state, and therefore the third prong was satisfied. Id.As in the instant case, Bitterroot involved a discrete
determination, rather than a direct challenge to a law or policy.
See id. The Montana court reiterated the district court’s
statement that the case was of “statewide importance to all
Montanans,” because “the decision clarified the status of other
public waters in the state apart from the [public water at
issue].” Id. Thus, inasmuch as the determination regarding one
waterway had an impact on other waterways in the state, the
Montana supreme court held that the third prong had been
satisfied.
Scenic Hawai#i points to the precedential value of the
litigation in this case in establishing that “the State and its
agencies must abide by its obligations and statutory requirements
. . . .” HRS § 206J-6 does prescribe statutory limitations on
the powers of ATDC with respect to Irwin Park, which ATDC
presumably attempted to bypass through its Petition. See HRS §
206J-6(c). As noted, by way of its Petition, ATDC sought to
remove the reservations and conditions explicitly referenced in
the statute. This litigation concerned a specific property, but
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the result vindicated the dedication of public parks and historic
sites across the state. The continued applicability of the
reservations and conditions from the Fagan Deed in the use of
Irwin Park helps to ensure the viability of statutory controls
set forth by the legislature on the use of property by public
agencies or instrumentalities of the state, particularly when
such controls involve a park or historic site. By opposing the
Petition and involving the private parties in the suit, Scenic
Hawai#i helped to set precedent that agencies may not easily
subvert statutory limitations through indirect actions.
The number of people standing to benefit by the
litigation is significant in terms of both the use of the park
itself and the preservation of the park’s historical
significance. The underlying case addressed ATDC’s efforts to
remove a particular public park, but the litigation also
prevented ATDC from altering a historic site and acting in
contravention of HRS § 206J-6(c) and Fagan’s donative intent.
This case has general precedential value for enforcing
governmental adherence to the dedication of private land for
public parks and as historic sites, and for the enforcement of
the government’s commitments to the preservation of such parks
and historic sites. Cf. Kaleikini v. Yoshioka, No. SCAP-11-
0000611, 2013 WL 1844892, at *9 (May 2, 2013) (holding that the
third prong of the doctrine is met where, inter alia, the
underlying litigation “ensured that historic preservation laws
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will be enforced as written.”). These are the types of causes
that have value to society as a whole, but which would not
necessarily be vindicated by a single individual. See Sierra
Club II, 120 Hawai#i at 219, 202 P.3d at 1264. Therefore, the
third prong of the doctrine is satisfied in this case.
VIII.
In conclusion, all three prongs of the private attorney
general doctrine were satisfied. The ICA’s January 18, 2013
judgment thus is reversed, and the court’s Final Judgment entered
on March 29, 2010 is affirmed.
John T. Hoshibata, /s/ Mark E. Recktenwald
Rex Y. Fujichaku,
and Dana A. Barbata, /s/ Paula A. Nakayama
for petitioner
/s/ Simeon R. Acoba, Jr.
Deirdre Marie-Iha,
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
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