Attorneys Fees & Costs

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This is the second half of a post from the week before last, about the Hawaii Supreme Court’s opinion in Goo v. Arakawa, No. SCWC-30142 (Feb. 19, 2014).

In that case, the court was presented with two issues. First, what should an appellate court do with a trial court’s judgment when a case becomes moot while on appeal. The court held that there was no one-size-fits-all solution, but that in most cases, the appeal should be remanded to the trial court to see whether the facts that resulted in appellate mootness cut in favor of wiping out the judgment, or leaving it in place. 

Second, the court considered whether the plaintiffs were entitled to fee-shifting under the “private attorney general” doctrine, a doctine which the Hawaii Supreme Court first recognized formally in the “Superferry” case, The court applies a three-part test to determine whether :

  • The

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Continue Reading HAWSCT’s Latest On The Private Attorney General Doctrine

No one contests that when it condemned property in Norfolk, Virginia to expand the Federal courthouse, the federal government made unreasonable pretrial offers to the property owner. The owner’s appraisals valued the property at $36.1 and $30.7 million, but the government valuation resulted in a $6.175 pretrial offer. After the pretrial dance, the final offers were $9.4 million from the government, compared to $15.4 million by the property owner.

Fortunately, the property owner had the good sense to seek advice from our good friends at Waldo & Lyle, and the jury returned a verdict for $13.4 million. As one of the prevailing parties, the property owner sought attorneys fees under the Equal Access to Justice Act. The government objected on the basis that its final offer was substantially justified, even though its pretrial offer may not have been, and thus “the position of the United States” as used…

Continue Reading 4th Cir: Govt’s Reasonable Trial Position On Just Compensation Doesn’t Get It Off The Hook For Its Unreasonable Pretrial Position

Remember the case from late last year in which the Honolulu Star-Advertiser brought a freedom of information/open records lawsuit against the Hawaii governor to force him to disclose the names of judicial nominees? Abandoning the practice of his two predecessors, the Governor refused to release the list of names of nominees transmitted to him by the Judicial Selection Commission. The trial court ruled in favor of the newspaper and ordered disclosure, and assessed the Governor attorneys fees and costs. Hawaii law makes an assessment mandatory in open records cases. [Disclosure: we represent the Star-Advertiser in this case.]

Well, last week, the Hawaii Intermediate Court of Appeals, in this Summary Disposition Order, rejected the Governor’s appeal of the assessment. The court found no merit in most of his appeal. Judge Ginoza dissented. We won’t comment since we’re in the case, but here is the report on the decision (“Ruling…

Continue Reading HAWICA: Attorneys Fee Award In JSC List Case Was Reasonable

Whoa, that was fast: in a case argued on August 2, 2013, and decided on August 9, 2013 (that’s one week from orals to opinion, folks), the U.S. Court of Appeals for the Sixth Circuit in Village of Maineville v. Salt Run, LLC, No. 12-4379 (Aug. 9, 2013), held that the property owner/plaintiff forfeited* its argument that a facial takings challenge to municipal impact fees is not subject to Williamson County‘s state procedures requirement because the argument was not raised in the District Court.

You know the drill: Williamson County tells us that a property owner cannot raise a federal takings claim in federal court unless it has first sought and been denied compensation via available state procedures. “And they agree that Salt Run has not invoked this procedure.” Slip op. at 5.

In the normal course, that would be the end of the case. Having failed to…

Continue Reading 6th Cir: Takings Plaintiff Forfeited Argument That Facial Challenges Not Subject To Williamson County’s State Procedures Requirement

What’s the difference, if any, between a “cemetery” and a burial, and are burials in cemeteries exempt from archaeological review? That’s one of the issues the Hawaii Supreme Court agreed to review in this Order, by which it accepted the DLNR’s application for a writ of certiorari.

In Hall v. Dep’t of Land and Natural Resources, No. 12-0000061 (Dec. 14, 2012), the Intermediate Court of Appeals held that a development proposed by the historic Kawaiahao Church in Honolulu is not exempt from historic preservation review, and the state should have required the preparation of an archaelogical inventory survey prior to the State Historical Preservation Department’s check off on the project, even though the development is located in the Church’s cemetery.

The DLNR’s application posed the following Questions Presented:

Defendant-Appellee Kawaiaha‘o Church (the “Church”) is attempting to construct a multi-purpose building (“MPC Project”) on its grounds for use…

Continue Reading HAWSCT To Review Kawaiahao Church Cemetery Case

Tomrrow 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):

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Continue Reading HAWSCT Oral Argument Preview: More On The “Private Attorney General” Fee-Shifting Doctrine

Here’s the opinion of the California Court of Appeal (1st District) in an appeal we’ve been following, Lockaway Storage v. County of Alameda, No. A30874 (May 9, 2013), affirming that the County of Alameda is liable for a temporary regulatory taking under Penn Central, and awarding the property owners nearly three-quarters of a million in attorney fees.

The entire opinion is worth reviewing, but here’s the short story. Lockaway purchased agriculturally-zoned land in the East Bay area for use as a boat and RV storage facility, an alternate conditional use in ag-zoned land. For over a decade, the property had been used as such pursuant to a series of Conditional Use Permits. In 2000, however, the voters of the county approved an initiative which prohibited the development of storage facilties, unless approved by public vote. The ordinance contained a provision allowing “minimum development” if the prohibition would deprive…

Continue Reading Cal App Affirms Penn Central Temporary Regulatory Taking

Here’s the latest decision from the Hawaii Supreme Court applying the “private attorney general” doctrine, which allows a prevailing party to recover fees and costs in certain limited circumstances. In Kaleikini v. Yoshioka, No. SCAP-11-0000611 (May 2, 2013), the court awarded attorneys’ fees and costs incurred on appeal to the plaintiffs who prevailed in the case challenging the archaeological review for the $4+ billion Honolulu rail project. In its earlier opinion, the court held that the review could not be segmented, and that the city should not have started construction on any part of the project until archaeological review for the entire project had been completed.

Highlights:

  • Ask the appellate court only for those fees and costs you incur in that court; if you want fees incurred in the trial court, seek them there.
  • The going rate for highly skilled and experienced attorneys in Honolulu is darned reasonable

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Continue Reading HAWSCT’s Latest On The “Private Attorney General” Fee-Shifting Doctrine

Didn’t the California Supreme Court already deal the final blow to California’s redevelopment agencies when it held that the state legislature could eliminate redevelopment agencies without violating the California Constitution because what the lege giveth, the lege may taketh away? In California Redevelopment Association v. Matosantos, No. S194861 (Dec. 29, 2011) the court upheld the statute dissolving redevelopment agencies.

Apparently, however, there are residual issues. In 2009, “the Legislature enacted Assembly Bill No. 26, requiring redevelopment agencies throughout the state to contribute portions of their property tax increment funding for the 2009-2010 and 2010-2011 fiscal years into supplemental educational revenue augmentation funds (SERAF‘s) to be used for financing K-12 education in redevelopment areas.” As a result, redevelopment agencies were forced to transfer funds to the state general fund to offset other state-funded local programs.

In the latest case, California Redevelopment Ass’n v. Matosantos, No. C064907 (Cal. App. Jan…

Continue Reading Cal App: If Lege Can Eliminate Redevelopment Agencies, It Can Grab Redevelopment Money Too

In 2009, in the “Superferry” case, the Hawaii Supreme Court, after years of hinting (but not finding a suitable vehicle), formally adopted the “private attorney general’ doctrine allowing attorneys’ fee shifting in certain select circumstances. See Sierra Club v. Dep’t of Transp., 202 P.3d 1226 (Haw. 2009). Under that doctrine, a court evaluating a claim for fees and costs evaluates three “factors” —

  • The strength or societal importance of the public policy vindicated by the litigation.
  • The necessity for private enforcement and a magnitude of the burden on the plaintiff.
  • The number of people standing to benefit from the decision.

The first two factors are pretty vague and have not been further defined except in the initial instance in the Superferry case, in which the court held that when a case establishes a legal principle, it might qualify as “public policy” vindicated by the litigation, and when a plaintiff…

Continue Reading HAWICA Rejects “Private Attorney General” Fee-Shifting Doctrine In Land Court Case