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Wednesday, May 15, 2013
Aloha Tower Case Tests 'Private Attorney General' Before Supreme Court
By Robert Thomas @ 10:02 PM :: 4204 Views :: Development, Judiciary

HAWSCT Oral Argument Preview: More On The "Private Attorney General" Fee-Shifting Doctrine

by Robert Thomas, InverseCondemnation.com

Tomorrow morning (Thursday, May 16, 2013), at 9:00 a.m., the Hawaii Supreme Court will hear oral arguments in Aloha Tower Dev. Corp. v. State of Hawaii, No. SCWC-30484, in which the court is reviewing the opinion of the Intermediate Court of Appeals which held that a party was not entitled to recover attorneys fees under the "private attorney general" doctrine because the public policy vindicated by its arguments were not strong, and because the City and County of Honolulu joined the case on the same side. We summarized the ICA's opinion here.

The Supreme Court accepted cert on May 1, 2013, just over two weeks ago. Here are the cert-stage briefs (hat tip to colleague Rebecca Copeland):

The cert application phrases the Question Presented as follows:

Whether the Intermediate Court of Appeals ("ICA") gravely erred in holding that the Land Court abused its discretion by awarding Scenic Hawai‘i its attorneys’ fees and costs under the Private Attorney General Doctrine ("PAGD"). The Land Court did not abuse its discretion because it followed the precedent established by this court in Sierra Club v. Dep’t of Transp. of State of Hawai‘i, 120 Hawai‘i 181, 202 P.3d 1226 (2009) ("Sierra Club II"), and it satisfied all three prongs of the Private Attorney General Doctrine ("PAGD"). The Land Court ruled properly especially in light of the actions of the State and its Attorney General in not only completely abandoning its duty under Haw. Rev. Stat. § 206J-6(c), to preserve Irwin Memorial Park, but in driving the Petition which would have destroyed the Park. But for Scenic Hawai‘i’s intervention, the success in vindicating the public interest would have been problematic.

Here's the description of the appeal from the Judiciary web site:

Respondent Aloha Tower Development Corporation filed a Petition to expunge certain restrictive covenants in the deed and trust agreement governing the use and maintenance of Irwin Park, which is located near Honolulu Harbor. Petitioner Scenic Hawai'i, Inc. intervened in the subsequent litigation in order to preserve Irwin Park as a public park, taking the position that the restrictive covenants should not be expunged. After a bench trial, the court denied the Petition.

At the conclusion of litigation, Scenic Hawai'i sought attorneys’ fees and costs for its involvement in the litigation, as against Aloha Tower Development Corporation. The court granted attorneys’ fees and costs to Scenic Hawai'i under the private attorney general doctrine. Aloha Tower Development Corporation appealed to the Intermediate Court of Appeals (ICA), arguing that Scenic Hawai'i was not entitled to attorneys’ fees and costs because the court had improperly applied the private attorney general doctrine.

The ICA overturned the court’s award of fees and costs, holding that Scenic Hawai'i had not satisfied all three of the relevant factors of the private attorney general doctrine. In its Application, Scenic Hawai'i asks whether the ICA erred in concluding that Scenic Hawai'i did not satisfy the doctrine because it was not advocating for the public interest in the underlying litigation, and that there was no necessity for private enforcement of the public interest in this case.

The issue in this case is slightly different than presented in the court's most recent ruling about the private attorney general doctrine, as this appeal only involves the first two of the three private attorney general factors, and involves appellate and not de novo review of a claim for fees (the other case involved a party who prevailed on appeal, and thus the court was evaluating the application for fees as a matter of first instance, and not, as here, the question of whether the ICA committed "grave error" when it held that the Land Court abused its discretion when it allowed fees).

Why all of this interest by the court in the private attorney general doctrine lately? We don't know, but the more clarification about what the doctrine means and how to apply it, the better.

More, after the court issues a ruling.

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