Dasalia v. Onaka

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-NOV-2020
07:51 AM
Dkt. 78 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
ROBLYNN WAILANA DASALIA, LEIGHTON NIAKALA PANG KEE,
AND VICKI ELAINE ULSH, Plaintiffs-Appellees,
v.
DR. ALVIN ONAKA, in his official capacity as the
REGISTRAR OF VITAL STATISTICS, OFFICE OF HEALTH STATUS
MONITORING, DEPARTMENT OF HEALTH; AND THE DEPARTMENT
OF HEALTH, STATE OF HAWAI#I, Defendants-Appellants
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 13-1-0373)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
Defendants-Appellants Dr. Alvin Onaka, in his official
capacity as the Registrar of Vital Statistics, Office of Health
Status Monitoring, Department of Health (Onaka) and the
Department of Health, State of Hawai#i (DOH) (collectively the
State) appeal from the "Final Judgment as to All Claims and All
Parties" (Final Judgment) entered on February 27, 2015, by the
Circuit Court of the First Circuit (Circuit Court).1 The State
challenges the rulings by the Circuit Court that: granted summary
judgment in favor of Plaintiffs-Appellees Roblynn Wailana Dasalia
(Plaintiff Dasalia), Leighton Niakala Pang Kee (Plaintiff Pang
Kee), and Vicki Elaine Ulsh (Plaintiff Ulsh) (collectively
1
The Honorable Karl L. Sakamoto presided over all proceedings.
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Plaintiffs); denied reconsideration of the summary judgment
ruling; and awarded attorneys' fees and costs to Plaintiffs.
On appeal, the State asserts the following points on
appeal: (1) the Circuit Court erroneously concluded that
paternity is a "factual error" that a person is entitled to
"correct" on his or her birth certificate pursuant to DOH
regulations and Hawaii Revised Statutes (HRS) §§ 92F-24 (2012),
338-15 (2010) and 338-17 (2010); (2) the Circuit Court
erroneously concluded that DOH could determine paternity on its
own, without a court order; and (3) the Circuit Court erred in
awarding attorneys' fees to Plaintiffs pursuant to HRS § 92F-27
(2012).
We conclude the first two points on appeal are moot,
but affirm the award of attorneys' fees and costs to Plaintiffs.
I. Background
Plaintiffs sought to have DOH make additions to, or
change, their original birth certificate with regard to the
identity and ethnicity of their respective father, without a
court order. The State responded that a court order was
required. Plaintiffs then brought this action and the Circuit
Court granted summary judgment in favor of Plaintiffs, ruling
that the DOH had the authority to make the changes without a
court order. Subsequent to its summary judgment ruling, however,
the Circuit Court also granted a motion by Plaintiffs to
determine their respective natural fathers and ordered DOH to
amend each of their respective original birth certificates to
reflect the Circuit Court's determination.
In this appeal, the State does not challenge the
Circuit Court's determination as to the natural father for each
Plaintiff and the order to DOH to amend the original birth
certificate for each Plaintiff. Rather, the State challenges the
Circuit Court's rulings that DOH had the authority to make the
changes without a court order and also the Circuit Court's award
of attorneys' fees and costs to Plaintiffs.
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A. Undisputed Facts
In 2012, separately on behalf of each of the
Plaintiffs, the Native Hawaiian Legal Corporation (NHLC) sent a
letter to DOH stating that it was submitting an "Application for
Major Administrative Amendment of Birth Certificate."2 In each
letter, NHLC sought to either "supplement" or "correct" the
original birth certificate of the respective Plaintiff with "the
name and racial information" for that Plaintiff's biological
father, pursuant to HRS § 338-15, HRS Chapter 92F, and DOH's
Public Health Regulations (PHR) Chapter 8B Rules 3.2, 3.3, 3.4,
and 3.5.3
Each of the Plaintiffs have circumstances particular to
their situation, and therefore, we briefly discuss the background
for each.
1. Plaintiff Dasalia
Plaintiff Dasalia was born to mother Paulann Leimomi
Dasalia, who was unmarried at that time. Plaintiff Dasalia's
birth certificate does not list a father or his race. Prior to
2
It appears the letter itself was intended as the "application," as
there is no separate document attached that is referenced or titled as an
application.
3
At the time of the Circuit Court proceedings, HRS § 338-15 provided:
§338-15 Late or altered certificates. A person born
in the State may file or amend a certificate after the time
prescribed, upon submitting proof as required by rules
adopted by the department of health. Certificates
registered after the time prescribed for filing by the rules
of the department of health shall be registered subject to
any evidentiary requirements that the department adopts by
rule to substantiate the alleged facts of birth.
With regard to HRS Chapter 92F (Uniform Information Practices Act),
Plaintiffs specifically relied on HRS § 92F-24(a), which states: "An
individual has a right to have any factual error in that person's personal
record corrected and any misrepresentation or misleading entry in the record
amended by the agency which is responsible for its maintenance." The State's
position is that the lack of a father named on a birth certificate, or the
name of an individual other than the biological father, is not a "factual
error."
PHR Chapter 8B Rules are located in Chapter 117 of Title 11 of the
Hawaii Administrative Rules. The text of the relevant PHR rules are set forth
infra.
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the instant case, Plaintiff Dasalia's original birth certificate
had not been amended.
NHLC sent a letter dated June 25, 2012, to DOH on
behalf of Plaintiff Dasalia. The letter noted that no father is
listed on Plaintiff Dasalia's original birth certificate and
stated the application for Plaintiff Dasalia sought to
"supplement the information contained on [Plaintiff Dasalia's]
original certificate to include the name and racial information
for her biological father, [Robert Kaho#iwai Ho#opi#i (Robert
Ho#opi#i)]." Documents submitted with the letter included:
Plaintiff Dasalia's original birth certificate; DNA test results
asserted to show the biological relationship between Plaintiff
Dasalia and Robert Ho#opi#i; and an affidavit by Robert Ho#opi#i
attesting in part that "I have five children including my
daughter Roblynn Wailana Dasalia."
2. Plaintiff Pang Kee
Plaintiff Pang Kee was born to mother Florence Kanani
Silva, who was unmarried at that time. Plaintiff Pang Kee's
original birth certificate did not list a father or his race.
Thereafter, his mother married Anthony Pa#alani Kim You Pang Kee
(Anthony Pang Kee), Plaintiff Pang Kee was adopted at the age of
four years old by Anthony Pang Kee, and a new birth certificate
was issued listing Anthony Pang Kee as Plaintiff Pang Kee's
father.
NHLC sent a letter dated April 4, 2012, to DOH on
behalf of Plaintiff Pang Kee. The letter noted that no father is
listed on Plaintiff Pang Kee's original birth certificate and
that the application for Plaintiff Pang Kee sought to "supplement
the information contained on [Plaintiff Pang Kee's] original
certificate to include the name and racial information for his
biological father, Mr. Earick Kukonu, Sr. (Earick Kukonu, Sr.),
who died on April 28, 1983." Documents submitted with the letter
included: DNA test results asserted to show a biological
relationship between Plaintiff Pang Kee and Rodney Kukonu, Earick
Kukonu, Sr.'s full biological brother; declarations of
individuals involved in administering or overseeing the DNA test;
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a declaration by Plaintiff Pang Kee requesting to supplement his
original birth certificate; and a copy of Plaintiff Pang Kee's
original birth certificate.
3. Plaintiff Ulsh
Plaintiff Ulsh was born to mother Grace Agnes Ann Konet
Wong (Grace Wong) who, at that time, was married to Horace Koon
Fong Wong (Horace Wong). Plaintiff Ulsh's original birth
certificate listed Grace Wong as her mother and Horace Wong as
her father. Following Plaintiff Ulsh's parents' divorce, Grace
Wong married James Edward Anderson (James Anderson), who adopted
Plaintiff Ulsh. Plaintiff Ulsh was subsequently issued a new
birth certificate listing James Anderson as her father.
NHLC sent a letter dated August 15, 2012, to DOH on
behalf of Plaintiff Ulsh. The letter noted that Plaintiff Ulsh's
original birth certificate lists Horace Wong as her father, that
he is not her biological father, that upon Plaintiff Ulsh's later
adoption by James Anderson her original birth certificate was
sealed and an amended birth certificate identifies James Anderson
as her father. The letter sought to "correct the information
contained on [Plaintiff Ulsh's] original certificate to include
the name and racial information for her biological father, Mr.
Charles Kauhiaimokuakama Ahlo ([Charles Ahlo]), who died on
November 17, 2007." Documents submitted with the letter
included: DNA test results and a supporting declaration asserted
to show the biological relationship between Plaintiff Ulsh and
Charles Ahlo; the declaration of Plaintiff Ulsh; the declaration
of Plaintiff Ulsh's mother, now known as Grace Kaonohi; and the
declaration of Charles Ahlo, dated July 12, 2007, in which he
attested, inter alia, "I am the biological father of Mrs. Vicki
Elaine Ulsh," that he had acknowledged to Plaintiff Ulsh, family
members and close friends that he was Plaintiff Ulsh's father,
and that he would bring Plaintiff Ulsh to his family home
throughout her childhood.
4. DOH's denial of the requests
DOH denied each of the application requests submitted
by NHLC. With regard to Plaintiff Dasalia, the DOH stated that
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she should seek a court order to determine paternity. With
regard to Plaintiff Pang Kee and Plaintiff Dasalia, the DOH
stated that "a change in a parent on a birth certificate is a
'Judicial amendment'" pursuant to PHR Chapter 8B section 3.4.A,
and not a "Major administrative amendment" as defined by PHR
Chapter 8B section 3.4.B. DOH further stated that Plaintiff Pang
Kee and Plaintiff Ulsh's respective adoptions legally prevented
DOH from modifying their original birth certificates: "[o]nce an
adoption decree is entered, adoption records are sealed pursuant
to HRS § 578-15."
B. Procedural History
On February 8, 2013, Plaintiffs filed a "Complaint for
Declaratory Judgment" in the Circuit Court, requesting review of
the DOH's denial of their respective requests "pursuant to [HRS]
Chapter 92F, § 338-15, and the Department's Public Health
Regulations Chapter 8B . . . Rules 3.2, 3.3, 3.4, and 3.5."
Plaintiffs made the following requests for relief:
A. For an order declaring that a major administrative
amendment is the proper means by which to amend the original
birth certificates of [Plaintiffs];
B. For an order declaring that Defendant Department of
Health has the authority to amend the original birth
certificates of [Plaintiffs] without a court order;
C. For an order requiring Defendant Department of Health to
make a determination as to whether the evidence provided in
support of the applications for major administrative
amendment submitted by [Plaintiffs] entitles them to a major
administrative amendment;
D. For an order declaring that Defendants violated the
rights of [Plaintiffs] to amend their birth certificates;
E. Grant [Plaintiffs] their attorney's fees and costs
pursuant to HRS Chapter 92F-27.
F. For such other and further relief as this Court deems
appropriate.
On March 22, 2013, the State filed their Answer.
On September 6, 2013, Plaintiffs filed their Motion for
Summary Judgment, requesting the same relief as in their
Complaint.
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On October 3, 2013, the Circuit Court held a hearing on
the Plaintiffs' Motion for Summary Judgment, and orally ruled
that given PHR Chapter 8B Rules 3.4 and 3.5,4
4
PHR Chapter 8B Rules 3.4 and 3.5 provide:
3.4 Classification of Amendments
A. Judicial amendments. Changes in name,
alterations, additions, deletions or
substitutions in data originally entered which
are ordered by a court of competent
jurisdiction.
B. Major administrative amendments. Alterations,
additions, deletions or substitutions in data
originally entered which materially affect the
validity or integrity of a certificate or would
substantially modify fundamental relationships
contained therein.
C. Minor administrative amendments. All other
changes including but not limited to
typographical errors, spelling errors,
transposed errors, and alterations, additions,
deletions or substitutions in data originally
entered which would not materially affect the
validity or integrity of a certificate or would
not substantially modify any fundamental
relationship on it.
3.5 Amendments to Birth and Fetal Death Certificates
A. Judicial amendments include:
(1) Supplementary birth certificates based on
adoption, legitimation or paternity
determination.
(2) Amendment of birth certificate to show a
change of name by change of name decree or
court order.
(3) Amendment of information registered
through misrepresentation or fraud.
B. Major administrative amendments include:
(1) Supplementary birth certificates or
amendments based on adoption,
legitimation, or paternity done in
accordance with law or regulations not
ordered by a court.
(2) Any substantial alteration of the surname
of the registrant not covered by change of
name decree or court order.
(3) Change in sex of registrant based on
surgical alteration.
(4) Registration of given name(s) for the
first time six years or more after birth.
(5) Change in given name(s) of the registrant
ninety days or more after date of birth.
(6) Change of name of either parent except
minor spelling errors.
(7) Change in date or place of the birth.
(8) Change in sex of child, type of birth and
medical data relating to delivery and post
natal period.
(9) Change in date and place of birth of
(continued...)
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when read in conjunction with HRS §§ 92F-24, 338-175 and 338-15,
DOH has the authority to "amend any factual errors in a
certificate including determination of the birth father for
purposes of ancestral facts." The Circuit Court further held
that, because Plaintiffs are seeking to establish "genealogical
ancestry" and "not trying to establish a child and parent
relationship for the purpose of insuring that they receive
support benefits from their respective fathers[,]" HRS Chapter
584 (titled "Determination of father and child relationship; who
may bring action; when action may be brought; process, warrant,
bond, etc.") is not applicable. Rather, the Circuit Court noted
that HRS Chapter 338 and the rules under PHR Chapter 8B provide
alternative means, separate and apart from HRS Chapter 584, for
amending a birth certificate.
On December 5, 2013, the Circuit Court entered its
Order granting Plaintiffs' Motion for Summary Judgment (12/5/13
Order).
On December 13, 2013, the State filed a Motion for
Reconsideration of the 12/5/13 Order. The Circuit Court denied
the motion.
On May 22, 2014, the Plaintiffs filed a "Motion for
Judicial Determination and an Order Requiring Defendant
(...continued)
either parent.
(10) Change in marital status of the mother.
(11) Change in medical cause of death and
related information on the fetal death
certificate.
C. Minor administrative amendments include:
(1) Minor errors in spelling, typographical
errors or corrections of transposed
letters.
(2) Registration of given name(s) for the
first time prior to age six.
(3) Change in given name(s) prior to 90 days
of age.
(Emphases added).
5
Although the Circuit Court referenced HRS § 338-17, it does not
appear to be applicable as it provides that: "[t]he probative value of a
'late' or 'altered' certificate shall be determined by the judicial or
administrative body or official before whom the certificate is offered as
evidence."
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Department of Health to Amend Plaintiffs' Birth Certificates"
(5/22/14 Motion), requesting that the Circuit Court "make a
judicial determination as to the identity of Plaintiffs' natural
fathers and ultimately order [DOH] to amend Plaintiffs' birth
certificates accordingly."
On June 20, 2014, the Circuit Court held a hearing and
orally granted the Plaintiffs' 5/22/14 Motion with regards to all
Plaintiffs. On July 24, 2014, the Circuit Court entered its
"Order Granting Plaintiffs' Motion for Judicial Determination and
an Order Requiring [the State] to Amend Plaintiffs' Birth
Certificates filed May 22, 2014" (Order Granting Judicial
Determination).
On September 18, 2014, Plaintiffs moved for an award of
attorneys' fees and costs against the State. On December 4,
2014, the Circuit Court entered its "Order Granting Plaintiffs'
Motion for Attorneys' Fees and Costs" (12/4/14 Order), pursuant
to HRS § 92F-27(e) (2012),6 in which it awarded to Plaintiffs
attorneys' fees in the amount of $40,985.50 and costs in the
amount of $968.12.
On February 27, 2015, the Circuit Court issued its
"Final Judgment as to All Claims and All Parties" in favor of
Plaintiffs.
II. Discussion
A. The first two points of error raised by the State are moot
The first two issues on appeal raised by the State
address whether the circuit court erred in granting summary
judgment to Plaintiffs on the question of whether DOH had the
authority, without court order, to make the requested changes to
their birth certificates. In its opening brief on appeal, the
State expressly states it does not challenge the Circuit Court's
rulings in its Order Granting Judicial Determination, in which
6
HRS § 92F-27(e) provides that "[t]he court may assess reasonable
attorney's fees and other litigation costs reasonably incurred against the
agency in any case in which the complainant has substantially prevailed, and
against the complainant where the charges brought against the agency were
frivolous."
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the Circuit Court determined the natural father for each of the
Plaintiffs and ordered DOH to amend the respective original birth
certificates for each of the Plaintiffs.7
Given the Order Granting Judicial Determination, we
must address whether this appeal is moot because Plaintiffs have
achieved the requested change to their original birth
certificates that they sought from DOH, and the State does not
challenge that ruling on appeal. The Hawai#i Supreme Court has
stated:
A case is moot if it has lost its character as a present,
live controversy of the kind that must exist if courts are
to avoid advisory opinions on abstract propositions of law.
The rule is one of the prudential rules of judicial
self-governance founded in concern about the proper—and
properly limited—role of the courts in a democratic society.
We have said the suit must remain alive throughout the
course of litigation to the moment of final appellate
disposition to escape the mootness bar.
Kaho#ohanohano v. State, 114 Hawai#i 302, 332, 162 P.3d 696, 726
(2007) (emphasis and citations omitted). Further, the Hawai#i
Supreme Court has expressed:
The mootness doctrine is said to encompass the circumstances
that destroy the justiciability of a suit previously
suitable for determination. Put another way, the suit must
remain alive throughout the course of litigation to the
moment of final appellate disposition. Its chief purpose is
to assure that the adversary system, once set in operation,
remains properly fueled. The doctrine seems appropriate
where events subsequent to the judgment of the trial court
have so affected the relations between the parties that the
two conditions for justiciability relevant on appeal—adverse
interest and effective remedy—have been compromised.
Hamilton ex rel. Lethem v. Lethem, 119 Hawai#i 1, 5, 193 P.3d
839, 843 (2008) (citations omitted).
As noted above, the Plaintiffs' Complaint sought
declaratory relief.
[I]n determining whether parties still retain sufficient
interests and injury as to justify the award of declaratory
relief, the question is whether the facts alleged, under all
the circumstances, show that there is a substantial
controversy, between parties having adverse legal interests,
of sufficient immediacy and reality to warrant a declaratory
judgment.
7
The Circuit Court determined that Plaintiff Dasalia's natural father
is Robert Ho#opi#i, that Plaintiff Pang Kee's natural father is Earick Leialoha
Kukonu, that Plaintiff Ulsh's natural father is Charles Ahlo, and ordered DOH
to amend the original birth certificate of each Plaintiff to reflect the
court's determination.
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Kaho#ohanohano, 114 Hawai#i at 332, 162 P.3d at 726 (citations
omitted). In paragraph 44 of their Complaint, Plaintiffs assert:
"By reason of Defendants' refusal to amend Plaintiffs' original
birth certificate via a major administrative amendment to reflect
the identity of their biological fathers, there exists an actual
ongoing controversy between Plaintiffs and Defendants within the
meaning of HRS Chapter 632." However, in light of the Circuit
Court's unchallenged Order Granting Judicial Determination, the
circumstances no longer remain the same.
We conclude that, given these circumstances, the issues
raised by the State in its first two points of error are moot.
Further, none of the exceptions to mootness apply in this case.
With regard to the "capable of repetition yet evading
review" exception, the Hawai#i Supreme Court has stated:
The phrase, "capable of repetition, yet evading review,"
means that "a court will not dismiss a case on the grounds
of mootness where a challenged governmental action would
evade full review because the passage of time would prevent
any single plaintiff from remaining subject to the
restriction complained of for the period necessary to
complete the lawsuit."
Hamilton ex rel. Lethem, 119 Hawai#i at 5, 193 P.3d at 843(quoting In re Thomas, 73 Haw. 223, 226–27, 832 P.2d 253, 255
(1992)). This exception does not apply in this instance, as the
passage of time would not "prevent any single plaintiff from
remaining subject to the restriction complained of for the period
necessary to complete the lawsuit." Id. Here, in addition to
ruling on DOH's authority to independently make the requested
changes, the Circuit Court further made the determination as to
the Plaintiffs' natural fathers and then ordered DOH to change
the respective birth certificates accordingly. Those subsequent
rulings, along with the State's decision not to challenge them on
appeal, renders this case moot, but need not be the situation in
other cases.
Additionally, the legal landscape has changed such that
it seems doubtful that the case is "capable of repetition." In
2016, Act 26 was adopted, titled "Relating to Amending Identity
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of Registrant's Parent on a Birth Certificate." Act 26 amended
HRS § 338-15 by adding the following underlined language:
§338-15 Late or altered certificates. A person born in the
State may file or amend a certificate after the time
prescribed, upon submitting proof as required by rules
adopted by the department of health. Certificates
registered after the time prescribed for filing by the rules
of the department of health shall be registered subject to
any evidentiary requirements that the department adopts by
rule to substantiate the alleged facts of birth. The
department may amend a birth certificate to change or
establish the identity of a registrant's parent only
pursuant to a court order from a court of appropriate
jurisdiction or pursuant to a legal establishment of
parenthood pursuant to chapter 584. Amendments that change
or establish the identity of a registrant's parent that are
made in accordance with this section shall not be considered
corrections of personal records pursuant to chapter 92F.
2016 Haw. Sess. Laws Act 26, § 1 at 31. Act 26 took effect upon
its approval on April 27, 2016. 2016 Haw. Sess. Laws Act 26, § 3
at 31. Act 26 is not directly applicable to this case, however
it addresses the primary issue that the Circuit Court addressed,
i.e., whether HRS § 92F-24(a), in combination with HRS § 338-15,
authorized the DOH to make changes to the Plaintiffs' birth
certificates without a court order.8 As intended by the
Legislature, it appears that Act 26 has clarified the law on the
issues raised in this case.
With regard to the "public interest" exception to
mootness, we consider "(1) the public or private nature of the
question presented, (2) the desirability of an authoritative
determination for future guidance of public officers, and (3) the
8
Two of the four committee reports related to House Bill (H.B.) 939,
which became Act 26, indicate that a reason for the bill was because
individuals had sued the DOH related to changing a parent on a birth
certificate. The case is not named, but appears to be the instant action.
See S. Stand. Comm. Rep. No. 2893, in 2016 Senate Journal, at 1246-47; S.
Stand. Comm. Rep. No. 3572, in 2016 Senate Journal, at 1538. Each of the
committee reports indicate H.B. 939 was intended to clarify the law. See H.
Stand. Comm. Rep. No. 6-16, in 2016 House Journal, at 759 ("The purpose of
this measure is to clarify that amendments to birth certificates to change or
establish the identity of a registrant's parents may be made by the Department
of Health only pursuant to a court order or the legal establishment of
parenthood in accordance with the Uniform Parentage Act and not as a
correction to a personal record under the Uniform Information Practices
Act."); H. Stand. Comm. Rep. No. 338, in 2015 House Journal, at 894 (This
report was issued in 2015 because H.B. 939 was a carry-over bill introduced in
the 2015 legislative session and adopted in the Regular Session of 2016); S.
Stand. Comm. Rep. No. 2893, in 2016 Senate Journal, at 1246; S. Stand. Comm.
Rep. No. 3572, in 2016 Senate Journal, at 1538.
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likelihood of future recurrence of the question." Hamilton ex
rel. Lethem, 119 Hawai#i at 6-7, 193 P.3d at 844-45 (citations
omitted). Here, the question is private in nature, affecting the
birth certificates of the three Plaintiffs. Moreover, given the
adoption of Act 26, the relevant statutes have been clarified to
provide guidance for DOH and, as noted above, it appears unlikely
that there would be a recurrence of the question raised in this
case.
The "collateral consequences" exception to mootness has
been adopted in Hawai#i with regard to "domestic violence
[Temporary Restraining Orders (TROs)] where there is a reasonable
possibility that prejudicial collateral consequences will occur
as a result of the entry of the TRO[,]" id. at 9-10, 193 P.3d at
847-48 (quotation marks omitted), and in a family court matter
based on the Child Protective Act and the collateral consequences
to a parent's visitation rights. In re Doe, 81 Hawai#i 91, 99,
912 P.2d 588, 596 (App. 1996). The "collateral consequences"
exception is not applicable here.
We note that the State's third point of error
challenges the Circuit Court's award to Plaintiffs of attorneys'
fees in the amount of $40,985.50 and costs in the amount of
$968.12 under HRS § 92F-27(e), which provides in relevant part
that "[t]he court may assess reasonable attorney's fees and other
litigation costs reasonably incurred against the agency in any
case in which the complainant has substantially prevailed."
However, the State's appeal of the attorneys' fees and costs
award does not save the other issues from being moot. In Queen
Emma Foundation v. Tatibouet, 123 Hawai#i 500, 510, 236 P.3d
1236, 1246 (App. 2010), we addressed the question of "whether a
claim for attorneys' fees and costs keeps alive an otherwise moot
controversy." There, the circuit court had awarded the plaintiff
attorneys' fees and costs as the prevailing party under the
subject lease in that case and HRS § 607-14. Id. at 505, 236
P.3d at 1241. After determining that the substantive issues
under the lease were moot, id. at 507-09, 236 P.3d at 1243-45, we
cited cases from the U.S. Supreme Court and other jurisdictions
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in holding that the defendants' appeal of the attorneys' fees and
costs award did not save the substantive issues from being moot.
Id. at 510, 236 P.3d at 1246.
Applying the analysis in Queen Emma Foundation, the
State's first two points on appeal in this case remain moot,
notwithstanding the State's appeal of the attorneys' fees and
costs award.
B. Award of Attorneys' Fees and Costs
Although the substantive issues remain moot, under
Queen Emma Foundation, we have jurisdiction to review the award
of attorneys' fees and costs as follows:
We adopt the approach of the courts that have concluded that
"[a]lthough a claim for attorney's fees does not preserve a
case which has otherwise become moot on appeal, ... the
question of attorney's fees is ancillary to the underlying
action and survives independently under the Court's
equitable jurisdiction." United States v. Ford, 650 F.2d
1141, 1144 (9th Cir. 1981); see Bishop v. Committee on
Professional Ethics and Conduct of the Iowa State Bar, 686
F.2d 1278, 1290 (1982); Rodarte, 127 F.Supp.2d at 1115–17.
Where the underlying controversy has become moot, "there is
no right to review or redetermine any of the issues in the
underlying action solely for the purpose of deciding the
attorney's fees question." Ford, 650 F.2d at 1144 n. 1.
Instead, the question of attorney's fees and costs must be
decided based on whether the recipient of the attorney's
fees and costs award can be considered to be the prevailing
party in the underlying action, "without regard to whether
we think the [trial] court's decision on the underlying
merits is correct." Bishop, 686 F.2d at 1290; see Bagby v.
Beal, 606 F.2d 411, 414–15 (3d Cir. 1979). We have
jurisdiction, under this approach, to decide Defendants'
challenge to the circuit court's award of attorney's fees
and costs.
Id.Plaintiffs' Complaint asserts that it is brought, in
part, pursuant to HRS § 92F-27(a), which provides: "(a) An
individual may bring a civil action against an agency in a
circuit court of the State whenever an agency fails to comply
with any provision of this part, and after appropriate
administrative remedies under sections 92F-23, 92F-24, and 92F-25
have been exhausted." The Circuit Court's substantive ruling,
whether we agree with it or not, was that the DOH had the
authority under HRS §§ 92F-24 and 338-15 to make the changes
requested by the Plaintiffs to their original birth certificates,
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
without a court order. As noted above, the Circuit Court then
awarded Plaintiffs attorneys' fees and costs under HRS § 92F-
27(e), which states that "[t]he court may assess reasonable
attorney's fees and other litigation costs reasonably incurred
against the agency in any case in which the complainant has
substantially prevailed." Under the Circuit Court's ruling on
the substantive issue of DOH's authority under HRS §§ 92F-24 and
338-15 (which we do not review), the Plaintiffs substantially
prevailed. Given the standard under which we review it, the
Circuit Court's award to Plaintiffs of attorneys' fees and costs
under HRS § 92F-27(e) was not erroneous.
III. Conclusion
Based on the above, we do not address the merits of the
State's first two points on appeal and dismiss the appeal as moot
with regard to those issues. We affirm the "Order Granting
Plaintiffs' Motion for Attorneys' Fees and Costs," filed December
4, 2014.
DATED: Honolulu, Hawai#i, November 20, 2020.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Marissa H.I. Luning,
Deputy Solicitor General, /s/ Katherine G. Leonard
Department of the Attorney Associate Judge
General, for Defendants-
Appellants. /s/ Keith K. Hiraoka
Associate Judge
Camille K. Kalama,
Li#ulā E.K. Nakama,
for Plaintiffs-Appellees.
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