Hawaii Supreme Court Awards Appellate Attorney's Fees under Private Attorney General Doctrine

On May 3, 2013, the Hawaii Supreme Court issued an opinion awarding appellate attorney's fees and costs against the City & County of Honolulu in the amount of $41,192.00 in attorney's fees and $343.00 in costs in Kaleikini v. Yoshioka.

Aliʻiōlani Hale, Hawaii Supreme Court Building

The underlying case relates to the Honolulu rail transit project, which is summarized at Hawaii Supreme Court Grants Honolulu Rail Project Partial Victory.  In short, Kaleikini brought suit against the City and the State of Hawaii, challenging the approval of the Honolulu High-Capacity Transit Corridor Project.  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 20-mile, linear project under HRS chapters 6E (Historic Preservation), 343 (Environmental Impact Statements), and 205A (Coastal Zone Management).

Although phasing is permissible under federal historic preservation laws and the City completed historic and archaeological reports as part of a programmatic agreement; nonetheless, the Court found in Kaleikini's favor on her HRS chapter 6E claims as follows:

. . . SHPD [State Historic Preservation Division] 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.

Kaleikini timely filed a request for attorney's fees and costs, and in particular, "attorney's fees pursuant to the private attorney general doctrine, in relation to work performed by . . . attorneys, at both the trial and appellate levels."

At the outset, the Court recognized that "[n]ormally, pursuant to the `American Rule,' each party is responsible for paying his or her own litigation expenses."  Notwithstanding, the Court chose to invoke 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.'"  The three factors considered by the Court are:

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.

Addressing each factor in turn, the Court opined as follows:

1. "Kaleikini's case was responsible for clarifying the principle of procedural standing in historic preservation law in Hawaii, 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."
2. "Kaleikini was solely responsible for challenging the City and State's erroneous application of HRS chapter 6E, and clarifying the City and State's responsibilities under the law."
3. The Court's underlying decision in this case "established 'generally applicable law' regarding standing to enforce historic preservation laws."

Having decided that the private attorney general doctrine applied in this case, the Court awarded Kaleikini reasonable appellate attorney's fees.  However, the Court determined that Kaleikini's request for attorney's fees against the State were barred by sovereign immunity; consequently, only the City was responsible for appellate attorney's fees related to the City's claims and defenses.

In conclusion, the Court held as follows:

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.