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Electronically Filed
Supreme Court
SCWC-30142
19-FEB-2014
09:58 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
KAREN GOO, et al.,
Petitioners/Plaintiffs/Counterclaim-Defendants/Appellants/Cross-
Appellees,
vs.
MAYOR ALAN ARAKAWA, Successor-In-Interest to Mayor Charmaine
Tavares, WILLIAM SPENCE, Director of Planning, County of Maui,
Successor-In-Interest to Director Jeff Hunt, County of Maui
Respondents/Defendants/Cross-Claim Defendants/Appellees/Cross-
Appellants/Cross-Appellees,
and
VP AND PK(ML) LLC, KCOM Corp.,
Defendants/Intervenor-Defendants/Cross-Claim
Defendants/Counterclaimants/Cross-Claimants/Appellees/Cross-
Appellees/Cross-Appellants,
and
KILA KILA CONSTRUCTION,
Defendant/Cross-Claim Defendant/Cross-Claimant,
and
(John G.) JOHN G’S DESIGN & CONSTRUCTION, INC.,
Defendant/Cross-Claimant/Cross-Claim Defendant,
and
NEW SAND HILLS LLC.,
Respondent/Defendant/Intervenor-Defendant/Counterclaimant/Cross-
Claim Defendant/Appellee/Cross-Appellee/Cross-Appellant,
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and
DAVID B. MERCHANT; JOYCE TAKAHASHI; BRIAN TAKAHASHI,
Defendants/Intervenor-Defendants,
and
DIANE L. REASER, et al.,
Defendants/Intervenor-Defendants/Counter-Claimants,
and
HOOKAI, LLC, SANDHILLS ESTATES COMMUNITY ASSOCIATION,
Respondents/Intervenors/Appellees/Cross-Appellees/Cross-
Appellants,
and
CHERYL CABEBE, GERRY RIOPTA, and MELISSA RIOPTA,
Intervenor-Defendants/Appellees/Cross-Appellants.
SCWC-30142
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30142; CIV. NO. 07-1-0258(1))
FEBRUARY 19, 2014
RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.
OPINION OF THE COURT BY POLLACK, J.
This case addresses the issue of the procedure that an
appellate court should follow when a case becomes moot on appeal
and one party seeks vacatur of the lower court’s judgment.
We hold that the Intermediate Court of Appeals (ICA)
erred in vacating the circuit court’s judgments and December 31,
2008 Order Granting Partial Summary Judgment in this case and
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remanding the case for dismissal. In addition, we conclude that
the ICA did not err in affirming the circuit court’s denial of
plaintiffs’ request for attorneys’ fees.
I. Background
A.
On Maui, approval of development projects is a three-
phase process. Phase I involves approval of ordinances by the
Maui County Council (Council) that include prescribing the height
and density of structures to be built in a project. Phase II
requires approval of the preliminary plat by the Planning
Commission. Phase III requires the approval of the final plat by
the director of the Department of Planning. According to the
Charter of the County of Maui, the director of the Department of
Planning is charged with enforcing the zoning ordinances. Maui
County Charter § 8-8.3(6).
Approval of subdivisions requires the approval of
various state and county agencies. Ultimately the planning
director can approve subdivisions if they “conform to . . . the
county general plan, community plans, land use ordinances, the
provisions of the Maui County Code, and other laws relating to
the use of land[.]” Maui County Code § 18.04.030 (1993).
At the time of the relevant events in this case, Title
19, Article II, of the Maui County Code (MCC), known as the
Comprehensive Zoning Ordinance (CZO), stated that “[n]o building
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shall exceed two stories nor thirty feet in height.” Prior to
September 4, 1991, the CZO “definitions” section defined “height”
as the “vertical distance from finished grade to the highest
point of the finished roof surface[.]” (pre-1991 definition)
(Emphasis added).
On September 29, 1988, an application was filed for
Phase I approval of the Maui Lani Project District (MLPD). On
June 20, 1990, the Council enacted Ordinance 1924, which
constituted Phase 1 approval for the MLPD. MCC Chapter 19.78,
which codified Ordinance 1924, restricted structures in
residential sub-districts to “two-stories, not exceeding thirty
feet.”
On September 18, 1990, the MLPD received Phase II
approval when the Maui Planning Commission approved the MLPD’s
preliminary plat site plan.
B.
On September 4, 1991, the Council enacted Ordinance
2031 (Height Restriction Law), which changed the definition of
“building height.” “Height” was defined as “the vertical
distance measured from a point on the top of a structure to a
corresponding point directly below on the natural or finish
grade, whichever is lower.” (post-1991 definition) (Emphasis
added).
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The Height Restriction Law also provided definitions
for “natural grade” and “finish grade.” “Natural grade” was
defined as “the existing grade or elevation of the ground surface
which exists or existed prior to man-made alterations such as
grading, grubbing, filling, or excavating.” “Finish grade” was
defined as “the final elevation of the ground surface after man-
made alterations such as grading, grubbing, filing, or excavating
have been made on the ground surface.”
On October 18, 2003, the Sandhills Project within the
MLPD received preliminary subdivision approval, and on March 12,
2004, it received Phase III approval. According to former
Planning Director Michael Foley (Planning Director), “[t]he
Planning Department reviewed the project relative to the finished
grade and did not consider the effect of fill on building
heights.” In other words, the Planning Department did not
calculate fill into the allowable building heights of structures
in the MLPD.
On August 2, 2004, the Department of Public Works and
Waste Management issued a Grading and Grubbing Permit for the
Sandhills project that included a warning that adding fill to any
lots would “reduce the allowable height to less than 30 feet from
finished grade.” On the same day, the Fairways project within
the MLPD received preliminary subdivision approval. The
preliminary subdivision approval letter for the Fairways project
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included a similar warning concerning the effect of fill on
building heights.
On December 14, 2004, the Planning Director sent an
“Interdepartmental Transmittal” rescinding the Planning
Department’s recommendation of Phase III approval for the
Sandhills project based on the fact that the developers who were
building the project had raised the finished grade of the project
by adding tons of fill on top of the natural ground, and homes
built on the fill could violate the Height Restriction Law
because their rooftops would be higher than 30 feet from the
lower natural grade.
On December 22, 2004, as a result of the rescission,
representatives of the developers of the Sandhills and Fairways
projects (collectively, “subject projects”) had a private meeting
with Mayor Alan Arakawa (Mayor), the Planning Director, and
numerous representatives from various county agencies. At this
meeting, the developers expressed their concerns about the
County’s application of the post-1991 definition of “height” to
the MLPD and the County’s “rescission” of final subdivision
approval. The developers expressed their belief that Ordinance
1924, which had constituted Phase 1 approval for the MLPD,
authorized the application of the pre-1991 definition of height,
and the developers had already expended “substantial funds in
conjunction with the Sandhills project.”
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As a result of this meeting and various internal
communications, the Mayor orally advised the developers that the
County “would continue to adhere to [the pre-1991 definition] to
interpret the height restriction since the Sandhills and the
Fairways Projects had already received Phase I and Phase II
Project District Approvals prior to the 1991 enactment of the
building height restriction amendment and were within the
[MLPD].”
On May 31, 2005, the Mayor sent a letter to one of the
developers confirming this oral agreement. The Mayor wrote that
to resolve the conflict over the issue of developments using fill
with regard to building projects, which were approved before the
1991 re-definition of height, “I made an administrative decision
to allow the project to proceed with the building heights
determined from the finished grade.” The Mayor’s letter went on
to state, “Project District Phase III approval was granted based
on this decision.”
A copy of this letter was sent to the Planning Director
on December 22, 2005, seemingly in response to the Planning
Director’s inquiry concerning the county’s granting of Phase III
approval for the Fairways project. By mid-2007, both the
Sandhills and Fairways projects had received Phase III approval
pursuant to the Mayor’s decisions.
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C.
On July 18, 2007, in response to the grading and
compacting of “tons of dirt” allegedly over thirty feet high and
a retaining wall of equal size “loom[ing]” over their houses and
blocking their view planes over a “pleasant green valley,” Karen
Goo, et al. (Homeowners), filed a complaint against the Mayor and
the Planning Director (collectively, “County”) alleging that the
Mayor had unlawfully exempted the subject projects from the
Height Restriction Law. The complaint also alleged tort claims
against the County, defendants VP and PK(ML), KCOM Corp and,
eventually, New Sand Hills (collectively, “Developers”)
alleging.1 Counts I and II sought declaratory and injunctive
relief requiring the County to enforce the Height Restriction Law
generally and specifically to projects in the MLPD.
On November 16, 2007, Homeowners filed a motion for
partial summary judgment (MPSJ). Homeowners’ MPSJ requested an
order that the County enforce the Height Restriction Law
definition of “height” on the subject projects, and Developers be
1
In addition to Counts I and II, Homeowners alleged various claims
for, inter alia, negligence, nuisance, and intentional and/or negligent
infliction of emotional distress against Developers. On April 10, 2008, over
the objection of Homeowners, the circuit court bifurcated Counts I and II from
the other claims, and this case proceeded on Counts I and II alone. The
circuit court also ruled that only the County would remain a defendant on
Counts I and II. On May 13, 2008, Developers filed a motion to intervene,
which was granted on June 4, 2008. Homeowners amended their complaint four
times. Defendant New Sand Hills was added as a defendant in an amended
complaint.
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required to remove any improvements made in violation of the
CZO’s post-1991 definition.
On December 28, 2007, Developers filed a motion to
dismiss Homeowners’ complaint, which the County joined.
Developers argued, inter alia, that the complaint failed to join
indispensible parties, specifically “each and every lot owner
within the [MLPD] permitted after the 1991 Amendment[.]” On
February 25, 2008, the circuit court partially granted
Developers’ motion to the extent that the circuit court ordered
Homeowners to provide notice of the lawsuit to “all lot or real
property owners within the [MLPD] whose rights would be affected
should [the circuit court] grant the relief sought by
[Homeowners] in Counts I and II.” The order required that
Homeowners personally serve all of these “indispensable parties.”
On May 21, 2008, the attorney for Homeowners submitted
a declaration confirming that all potential parties-in-interest
had been notified in accordance with the circuit court’s order.
A total of 337 parties acknowledged receipt of notice, while 523
parties received the notice, as indicated by certified mail
receipts, but had not responded.
A hearing was held on Homeowners’ MPSJ on December 9,
2009. On December 31, 2008, the circuit court issued its
Findings of Fact, Conclusions of Law, and Order Granting
Plaintiffs’ Motion for Partial Summary Judgment (Order Granting
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Partial Summary Judgment), granting Homeowners’ November 16, 2007
MPSJ. In accordance with its Order Granting Partial Summary
Judgment, the Court ruled that the Height Restriction Law’s
definition of height applied to all projects in the MLPD and
enjoined the county from issuing any building permits to projects
that violated the post-1991 definition. The order stated that
declaratory relief would apply to the MLPD as a whole; however,
the circuit court limited the scope of the injunctive relief to
the Sandhills and Fairways projects, “so that the remedy is no
more burdensome to Defendant County of Maui than necessary to
provide complete relief to plaintiffs.” The order decreed:
1. The Maui Lani Project District, as a whole, is
subject to the residential height restriction as determined
in 1991 and codified at Maui County Code § 19.04.040,2 which
states that building height “means the vertical distance
measured from a point on top of a structure to a
corresponding point directly below on the natural or finish
grade, whichever is lower.”
2. Defendant, County of Maui, is enjoined from taking
any action which conflicts with the Court's determination of
the applicable height restriction relative to the Sandhills
project and the Fairways project including, but not limited
to, the issuance of building permits the result of which
would be inconsistent with Maui County Code § 19.04.04.
3. This Order shall remain in effect until further
order of the Court.
D.
On January 23, 2009, Homeowners made a motion for
attorneys’ fees pursuant to the private attorney general
doctrine. Homeowners set forth the three prongs of the private
attorney general doctrine: “(1) the strength or societal
2
MCC § 19.04.040 refers to the CZO’s “definitions” section.
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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.”3
Homeowners argued their lawsuit forced the county to
enforce important zoning laws, was necessary because the Mayor
had acted illegally, a significant burden had fallen upon
Homeowners because the County and Developers were actively
opposing Homeowners, and all the people of Maui stood to benefit
from the court’s ruling.
On February 24, 2009, the circuit court held a hearing
on the motion for attorneys’ fees. The circuit court concluded
that Homeowners met the first two prongs of the private attorney
general doctrine. However, the circuit court found Homeowners
did not meet the third prong because of the limited immediate
applicability of the Height Restriction Law to only the subject
projects within the MLPD and the fact that the offending fill
blocking Homeowners’ views would not be removed, thus making it
unclear how many people would benefit from the circuit court’s
decision.4
3
In light of our disposition of this case, we do not expand upon
the arguments and court rulings concerning the first two prongs of the private
attorney general doctrine.
4
On April 3, 2009, the circuit court filed its order denying
Homeowners’ January 23, 2009, motion for attorneys’ fees.
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On March 16, 2009, this court decided Sierra Club v.
Department of Transportation of State of Hawai#i, 120 Hawai#i 181,
202 P.2d 1226 (2009) (Superferry II). On March 31, 2009,
Homeowners filed a motion for reconsideration of the denial of
their motion for attorneys’ fees. Homeowners argued they met the
third prong because their lawsuit benefited the entire population
of Maui by promoting the rule of law on Maui through enforcement
of the zoning code, emphasized the importance of public
participation in the zoning process, and reduced the likelihood
of “future developers claiming an exemption from the zoning law
after holding a closed-door meeting with the mayor.”
On April 23, 2009, the circuit court held a hearing on
Homeowners’ motion for reconsideration. The circuit court found
that, based on its reading of Superferry II, Homeowners failed to
satisfy the first prong of the private attorney general doctrine
as well as the third prong.
Concerning the number of people benefitted in relation
to the third prong, the circuit court noted Homeowners’ complaint
concerned only two subdivisions and not a statute of statewide
application. The circuit court noted further that the entire
case was limited only to several homeowners living adjacent to
the projects involved. While recognizing that its ruling had
county-wide implications, the circuit court observed that more
people could be harmed by its decision than benefitted because
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the owners of property in the MLPD would not be able to build
homes.
On June 3, 2009, the circuit court entered its order
denying Homeowners’ motion for reconsideration.
The County and Developers appealed the circuit court’s
final judgments.5 Homeowners appealed the circuit court’s
denial of attorneys’ fees.
II. Appellate Proceedings
A.
On March 19, 2010, Homeowners filed their Opening
Brief.6 Homeowners raised a single point of error:
Whether the trial court erred in denying Homeowners’ request
for attorneys’ fees against the County under the private
attorney general doctrine.
Homeowners argued in their Opening Brief that their
lawsuit satisfied the third prong of the private attorney general
doctrine because it benefitted the entire population of Maui and
any persons who may purchase property on Maui in the future, and
denying Homeowners’ request for attorneys’ fees would discourage
future lawsuits such as theirs.
On August 28, 2011, after the briefing was submitted to
the ICA, the Council adopted a bill that became Ordinance 3848.
5
The circuit court issued three final judgments in this case on
January 12, 2009, April 3, 2009 and September 30, 2009.
6
Neither the County nor the Developers sought a writ of certiorari
from the ICA’s decision in this case. Similarly Defendant Sandhills Estates
Community Association also filed a cross-appeal, but did not seek review of
the ICA decision.
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Karen Goo, et al., v. Mayor Alan Arakawa, et al., No. SCWC-30142,
2013 WL 5289010, at *3 (App. Oct. 7, 2013) (mem.). Ordinance
3848 amended the CZO’s definition of height to the following:
“[f]or structures within project districts that received phase II
approval prior to September 4, 1991, finish grade shall be used
to determine height.” Goo, 2013 WL 5289010, at *3. On June 12,
2013, the ICA ordered the parties to file supplemental briefs on
the question of “whether, in light of Ordinance 3848, any of the
issues raised on appeal are moot.” Id. at *4. The ICA’s
supplemental briefing order did not require the parties to brief
the issue of vacatur.
On June 28, 2013, Homeowners filed their supplemental
brief. Homeowners argued that all of the issues raised by the
County and Developers were moot because Ordinance 3848 granted
the County and Developers the exact relief they requested, namely
allowing the subject projects to measure building height from
finished grade.
Homeowners contended, however, that their appeal
concerning attorneys’ fees was not moot. Homeowners argued that
it would be absurd to allow the County’s passage of a law making
previously illegal conduct legal to defeat a claim for attorneys’
fees under the private attorney general doctrine with regard to a
lawsuit that forced the change in the law.
On July 2, 2013, both the County and Developers
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submitted their supplemental briefs. The County argued that its
appeal and Homeowners’ appeals were moot. The County contended,
however, that Homeowners’ appeal concerning attorneys’ fees was
also moot.
The County argued further that the ICA should vacate
the circuit court’s decision because “merely dismissing the
appeal due to mootness could result in the trial court’s judgment
imposing collateral estoppel.” The County argued that it was not
issuing building permits for the subject projects because of the
circuit court’s 2008 order. Therefore, the County requested that
the order be vacated so that building could proceed pursuant to
Ordinance 3848.
Developers also contended in their memorandum that the
case was not moot because the County was not issuing building
permits.
B.
The ICA issued its Memorandum Opinion on September 19,
2013. The ICA found that Ordinance 3848 settled the primary
issue of whether the “pre-1991 definition of height or the more
restrictive 1991 definition of height applies to the [subject
projects] within the [MLPD]” and, thus, that issue was moot.
Goo, 2013 WL 5289010, at *5-6.
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The ICA stated that Developers’ concerns “should be
assuaged” by its decision to vacate the circuit court’s order and
judgments. Id. at *7 n.9, *8.
The ICA’s analysis with respect to the issue of vacatur
was as follows:
As recognized in Aircall of Haw., Inc. v. Home Props., Inc.,
6 Haw App. 593, 733 P.2d 1231 (1987), “where appellate
review has been frustrated due to mootness[,]” the circuit
court’s judgment, which is unreviewable because of mootness,
could lead to issue preclusion. Id. at 595, 733 P.2d at
1232. In Aircall of Haw., and subsequently, in Exit Co.
Ltd. P’ship v. Airlines Capital Corp., 7 Haw. App. 363, 766
P.2d 129 (1988), this court noted that such a result would
be unfair and resolved the potential for issue preclusion
where a case is rendered moot on appeal by adopting “the
federal practice of having the appellate court vacate the
judgment of the trial court and direct dismissal of the
case.” Exit Co., 7 Haw. App. at 367, 766 P.2d at 131
(citation and internal quotation marks omitted). We
likewise apply this resolution to the present case.
Id. at *8. Thus, because appellate review of the Height
Restriction Law issue was frustrated based on mootness and the
judgment had the potential to “lead to issue preclusion,” the ICA
vacated the circuit court’s December 31, 2008 Order Granting
Partial Summary Judgment and final judgments7 with respect to
Counts I and II of Homeowners’ complaint for Declaratory and
Injunctive Relief. Id. at *8. The ICA remanded the case to the
circuit court with orders to dismiss the action. Id.
The ICA found that Homeowners’ appeal concerning
attorneys’ fees was not moot, but concluded that Homeowners
failed to meet the first and third prongs of the private attorney
7
It appears the ICA did not vacate the circuit court’s April 3,
2009 final judgment.
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general doctrine.8 Id. at *9. On the third prong, the ICA found
that the number of people benefitting from the circuit court’s
ruling was unclear, probably limited, and the three-prong test of
the private attorney general doctrine was intended to constrain
the doctrine’s application to “exceptional circumstances.” Id.
Therefore, the ICA concluded that the circuit court did not abuse
its discretion in denying Homeowners’ motions for attorneys’
fees, and affirmed the circuit court’s April 3, 2009 order
denying Homeowners’ motion for attorneys’ fees. Id. at *12.
On September 27, 2013, Homeowners filed a timely motion
for reconsideration addressing the ICA’s vacation of the circuit
court’s judgments and order, and attaching what they stated were
meeting minutes created after the circuit court’s judgment that
showed Ordinance 3848 was only passed as part of a “global
settlement.” The ICA denied the motion.
III. Application for Writ of Certiorari
A.
On October 25, 2013, Homeowners timely filed their
application for writ of certiorari (Application) and present the
following questions:
A. Whether the declaratory judgment obtained by Homeowners
should be vacated and dismissed because the County’s [sic]
caused the mooting of the underlying controversy, or are
Homeowners entitled to keep the record of their success as
8
The ICA did not address the second prong because it found
Homeowners failed to meet the first and third prongs. Goo, 2013 WL 5289010,
at *10.
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the prevailing party and to guide government officials in
the future regarding the challenged illegal actions?
B. Whether Homeowners are entitled to their attorney’s fees
against the County under the private attorney general
doctrine because their suit vindicated important public
interests and benefitted the public broadly by compelling
the County to faithfully and equally enforce its zoning
laws, instead of exempting favored persons from the law’s
reach?
Homeowners argue the ICA erred in vacating the circuit
court’s “declaratory judgment.” Homeowners agree the appeals of
the County and Developers were moot, but contend that if a party
to a suit causes the mootness, that party’s actions preclude the
equitable remedy of vacatur. Citing to “Minutes of Maui County
Council Planning Committee,” Homeowners maintain that the County
passed Ordinance 3848 as part of a “global settlement” of various
lawsuits concerning the post-1991 definition of height and its
effects on the subject projects. Homeowners also quote “a County
attorney” testifying before the Council recommending the passage
of Ordinance 3848 so as to correct the decision of the circuit
court in this case.9
Thus, Homeowners, relying on U.S. Bancorp Mortgage Co.
v. Bonner Mall Partnership, 513 U.S. 18, 25 (1994), argue that
vacatur was inappropriate in this case because the mootness of
the primary issue did not occur through happenstance but rather
as the result of a concerted effort by the County and Developers
to circumvent the circuit court’s decision. Homeowners
9
These documents were apparently created after Council meetings in
2011 and 2009, respectively. The circuit court rendered its ruling against
the County and Developers in 2008.
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acknowledge that the injunction can be vacated, but argue the
declaratory judgment should be kept in place as recognition of
Homeowners’ challenge to the Mayor’s illegal conduct and their
vindication of the important public policy of equal enforcement
of zoning laws.
Homeowners also contend the ICA erred in affirming the
circuit court’s denial of attorneys’ fees, arguing that denying
their request for attorneys’ fees would have a chilling effect on
lawsuits filed by “ordinary” people seeking to enforce zoning
laws. Homeowners maintain their personal interest in the outcome
did not preclude an award of fees under the private attorney
general doctrine. They argue further that the hundreds of
notices the circuit court ordered Homeowners to mail demonstrated
that the case had a widespread effect.
B.
The County, in its Response to Homeowners’ Application,
argues that the vacatur by the ICA was proper. The County reasons
that the Maui County Council is an independent branch of
government from the County executive branch defendants and thus,
regardless of lobbying by the executive branch, the County “is in
a position akin to a party who finds its case mooted on appeal by
‘happenstance,’ rather than by events within its control.”
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The County maintains that the ICA properly found that
the circuit court did not abuse its discretion in denying
Homeowners attorneys’ fees.
Developers in their Response to Homeowners’ Application
also argue that vacatur was proper because the underlying appeal
was moot. In addition to arguments made by the County,
Developers maintain that Homeowners’ citations to the Maui County
Council Planning Committee Reports and Minutes were inappropriate
because they were not accompanied with citations to the Record on
Appeal. Developers also contend that Homeowners were judicially
estopped from arguing against the vacatur of the circuit court’s
declaratory judgment because Homeowners argued in their
supplemental briefing on mootness that all issues in the case
were moot, and they did not ask the ICA to affirm the circuit
court’s declaratory judgment.
Further, Developers assert that lot owners who cannot
build on their lots may sue Developers and rely on the circuit
court’s declaratory judgment “for the proposition that the law at
the time the lot owners purchased their lots prohibited or
limited construction on lots with fill.” This would result in
Developers being unfairly “forced to expend time, effort, and
expense defending against the legal claims that would likely
arise if the declaratory judgment is not vacated.”
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C.
Homeowners replied to both the County’s and Developers’
responses. Homeowners contend that because the County was
defending an illegal action by the Mayor, rather than a pre-
existing law, the Council’s passing of an ordinance retroactively
legalizing the Mayor’s conduct amounted to a voluntary action by
the County to moot this case. Homeowners argue that vacatur is
an equitable remedy, and the action by the Council to legalize
the Mayor’s illegal conduct did not entitle the County to such a
remedy.
In reply to Developers, Homeowners argue that they
brought the issue of vacatur to the attention of the ICA in their
motion for reconsideration. Homeowners maintain that the ICA did
not order them to brief the issue of vacatur, and the first
chance Homeowners had to raise the issue was in their motion for
reconsideration. Homeowners contend that the Meeting Minutes
they referenced could not be part of the Record on Appeal as the
minutes were created after the Record on Appeal was created.
Finally, Homeowners conclude that vacatur of the declaratory
judgment was a “last slap in the faces of [Homeowners] . . . who
sought judicial recognition that the mayor’s actions were
contrary to law[.]” Thus, Homeowners request that this court
“remand the matter to the trial court for further proceedings
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regarding the effect of [Ordinance 3848] on the injunction but
preserving the Declaratory Judgment[.]”
IV. Discussion
A. Vacatur
1.
In U.S. Bancorp Mortgage Co. v. Bonner Mall
Partnership, 513 U.S. 18, 22 (1994), the Supreme Court held that
in cases where “a judgment has become moot while awaiting review,
this Court may not consider its merits, but may make such
disposition of the whole case as justice may require.” The Court
explained that vacatur is an “extraordinary remedy.” Id. at 26
(brackets omitted).
In Bancorp, at issue was whether vacatur should be
granted where mootness results from a settlement agreement
between the parties. Id. at 20. In resolving this question, the
Court first noted that in the prior leading case on vacatur,
United States v. Munsingwear, Inc., 340 U.S. 36 (1950), the Court
had stated that vacatur “clears the path for future relitigation
of the issues between the parties and eliminates a judgment,
review of which was prevented through happenstance.” Bancorp,
513 U.S. at 22-23 (quoting 340 U.S. at 40). The parties in
Bancorp had agreed that pursuant to Munsingwear, vacatur must be
ordered for judgments rendered moot “through happenstance”; that
is, “where a controversy presented for review has become moot due
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to circumstances unattributable to any of the parties.” Id. at
23 (quotation marks omitted). However, the Court disagreed,
characterizing the reference to “happenstance” in Munsingwear as
“dictum.” Id. at 23.
In any event, the Bancorp Court held that the
“principles that have always been implicit in our treatment of
moot cases counsel against extending Munsingwear to settlement,”
as the Court had always “disposed of moot cases in the manner
most consonant to justice in view of the nature and character of
the conditions which have caused the case to become moot.” Id.
at 24 (quotation marks and ellipses omitted). “The reference to
‘happenstance’ in Munsingwear” was merely an “allusion to this
equitable tradition of vacatur,” given that “[a] party who seeks
review of the merits of an adverse ruling, but is frustrated by
the vagaries of circumstance, ought not in fairness be forced to
acquiesce in the judgment.” Id. at 25.
Thus, “[t]he principal condition to which [the Court]
looked [was] whether the party seeking relief from the judgment
below caused the mootness by voluntary action.” Id. at 24. The
Court emphasized that the settlement of a case is not a result of
“happenstance,” but a voluntary act of the parties. Id. at 23-
27. The Court held that “[w]here mootness results from
settlement . . . the losing party has voluntarily forfeited his
legal remedy by the ordinary processes of appeal or certiorari,
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thereby surrendering his claim to the equitable remedy of
vacatur.” Id. at 25.
Additionally, the Court explained that its holding
“must also take account of the public interest,” which “requires”
that the “demands of orderly procedure [of appeal] . . . be
honored when they can.” Id. at 26-27. The Court declared,
“[j]udicial precedents are presumptively correct and valuable to
the legal community as a whole. They are not merely the property
of private litigants and should stand unless a court concludes
that the public interest would be served by a vacatur.” Id. at
26 (quotation marks and citation omitted). Because the primary
route for parties to seek relief from judgments was through
appeal and certiorari, “[t]o allow a party who steps off the
statutory path to employ the secondary remedy of vacatur as a
refined form of collateral attack on the judgment would—quite
apart from any considerations of fairness to the parties—disturb
the orderly operation of the federal judicial system.” Id. at
27.
The Bancorp Court thus held that where a case has
become moot because the losing party voluntarily abandoned its
right of review, e.g., through settlement, vacatur is not
justified, although “exceptional circumstances may conceivably
counsel in favor of such a course.” Id. at 29. Moreover, the
Court held that, in all situations, the party requesting relief
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from the status quo had the burden of proving “equitable
entitlement to the extraordinary remedy of vacatur.” Id. at 26.
Finally, the Court determined that “even in the absence of, or
before considering the existence of, extraordinary circumstances,
a court of appeals presented with a request for vacatur of a
district-court judgment may remand the case with instructions
that the district court consider the request, which it may do
pursuant to Federal Rule of Civil Procedure 60(b).” Id. at 29.
Thus, Bancorp established a presumption against vacatur
in situations where the party requesting vacatur voluntarily
caused the case to become moot. The case also overruled what had
become a federal practice under Munsingwear, of automatically
vacating judgments that had become moot on appeal so as to avoid
issue preclusion attaching to a judgment that could not be
reviewed on appeal. 340 U.S. at 39-40. See also Valero
Terrestrial Corp. v. Paige, 211 F.3d 112, 120 (4th Cir. 2000) (in
the forty-four years between the Court’s decision in
Munsingwear and its decision in Bancorp, the prevailing practice
among district courts was to follow the appellate court practice
of automatically vacating moot judgments, pursuant to
Munsingwear).
This practice had led to a situation where “repeat
litigants,” such as insurance companies, were settling cases
after losing at the trial level against “one-time litigants,”
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such as policy-holders, but only on the condition that judgments
adverse to the interests of the repeat litigant were vacated.
Eugene R. Anderson, et. al., Out of the Frying Pan and into the
Fire: The Emergence of Depublication in the Wake of Vacatur, 4 J.
App. Prac. & Process 475, 476 (2002). Thus, “[t]hrough vacatur,
insurance companies [could] eradicate or reduce the number of
pro-policy holder decisions and then argue that the weight of
authority [was] in their favor.”10
Bancorp responded to this practice by holding that
appellate courts could no longer vacate lower court judgments
based solely on a settlement agreement, which represents a
voluntary abandonment of the right to appellate review, absent
“exceptional” or “extraordinary” circumstances. While Bancorp
preserved Munsingwear’s dictum that mootness resulting from
“happenstance” provides sufficient reason to vacate, 513 U.S. at
25 n.3, the Court clearly emphasized the need to consider the
public interest in preserving judicial precedents and “the
orderly operation of the federal judicial system” when granting
equitable relief such as vacatur. 513 U.S. at 26-27.
Furthermore, as noted, Bancorp explicitly states that, even
before considering the existence or absence of “extraordinary
10
Cf. Am. Games, Inc. v. Trade Prods., Inc., 142 F.3d 1164, 1170
(9th Cir. 1998) (finding that in cases of merger, the courts should evaluate
the “economics and incentives of the transaction to smoke out” whether the
merging parties are manipulating the common law through a “buy and bury”
strategy of vacating adverse judgments through merger).
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circumstances,” an appellate court presented with a request for
vacatur may remand to the trial court pursuant to the federal
rules. Id. at 29. Thus, Bancorp clearly allows an appellate
court to weigh the equities of vacatur or to simply remand to the
trial court to determine whether a judgment should be vacated
based upon consideration of the equities in the case.
The Ninth Circuit’s decision in American Games, Inc. v.
Trade Products, Inc., 142 F.3d 1164 (9th Cir. 1998), demonstrates
the value in an appellate court having the option of remanding in
situations where a case has become moot, even by happenstance.
In that case, a district court judgment resolving a controversy
between two parties was mooted while the case was on appeal to
the Ninth Circuit, due to an “asset sale that effectively merged
the two companies.” Id. at 1165-66. The parties then “requested
dismissal of the appeal and vacation of the district court
judgment.” Id. at 1166. Rather than weighing the equities of
vacatur, the Ninth Circuit dismissed the appeal and remanded the
case to the district court “for the purpose of considering the
motion for vacatur.” Id.
On remand, the district court allowed a third-party
corporation that had an interest in the preclusionary value of
the mooted judgment to intervene and argue against vacatur. Id.
at 1166-67. The defendant-corporation (the result of the
merger), argued that the judgment should be vacated pursuant to
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Munsingwear because the merger was “happenstance.” Id. at 1166.
The district court decided that the case “[fell] somewhere
between [Bancorp] (mootness by settlement) and [Munsingwear]
(mootness by happenstance).” Id. However, after balancing the
equities, the district court found that the “merger was motivated
by legitimate business reasons only incidental to the mooted
case, and not for the purpose of settling the case.” Id. The
district court thus issued the vacatur order. Id. The Ninth
Circuit affirmed the vacatur order, holding that due to the
“fact-intensive” nature of the “happenstance” inquiry, the
district court could conduct an equitable balancing test instead
of an “extraordinary circumstances” test. Id. at 1169-70.
Am. Games thus exemplifies how factually complex a
“happenstance” vs. “voluntary” analysis can be. Am. Games also
demonstrates how, through the “orderly operation of the federal
judicial system,” Bancorp, 513 U.S. at 27, appellate courts can
utilize remand to trial courts to develop a fuller record before
deciding the issue of vacatur.
The concurrence in Keahole Defense Coalition, Inc. v.
Board of Land & Natural Resources, 110 Hawai#i 419, 437, 134 P.3d
585, 603 (2006) (Del Rosario, Circuit Judge, concurring),11 also
recognized that the Bancorp “exceptional circumstances” test
11
Justice Acoba wrote the majority opinion and joined the concurring
opinion.
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applied only to appellate court vacatur. Id. Citing to Am.
Games, the concurrence explained that trial courts, on the other
hand, could vacate their own judgments based on an equitable
balancing test, even in the presence of voluntary action by the
party requesting vacatur. Id. (citing 142 F.3d at 1169-70).
In this case, the ICA held that vacatur was proper
because, “‘where appellate review has been frustrated due to
mootness[,]’ the circuit court’s judgment, which is unreviewable
because of mootness, could lead to issue preclusion.” Goo, 2013
WL 5289010, at *8 (citing Aircall of Haw., Inc. v. Home Props.,
Inc., 6 Haw App. 593, 733 P.2d 1231 (1987)). The ICA concluded,
based on Exit Co. Ltd. Partnership v. Airlines Capital Corp., 7
Haw. App. 363, 367, 766 P.2d 129, 131 (1988), which in turn cited
to Aircall, that such a result would be unfair to defendants and
resolved this unfairness “by adopting ‘the federal practice of
having the appellate court vacate the judgment of the trial court
and direct dismissal of the case.’” Goo, 2013 WL 5289010, at *8
(quoting Exit Co., 7 Haw. App. at 367, 766 P.2d at 131).
Aircall, however, relied on Munsingwear to justify the
“practice” of appellate courts vacating moot trial court
judgments solely to avoid issue preclusion. 6 Haw App. at 595,
733 P.2d at 1233 (“Vacation of the [circuit court’s order] and
remand of the case to the circuit court with direction to dismiss
the action will prevent the . . . Order, which is ‘unreviewable
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because of mootness, from spawning any legal consequences.’
[Munsingwear], 340 U.S. at 41[.]”). However, as set forth above,
Bancorp essentially abolished this federal practice.
In its place, Bancorp established the “extraordinary
circumstances” test for appellate court vacatur of lower court
judgments rendered moot by the voluntary actions of the parties,
and directed federal appellate courts to “take account of the
public interest” before vacating cases mooted by “happenstance.”
The procedural history in Am. Games demonstrated further that
even cases apparently mooted on appeal by “happenstance” may
require “fact-intensive” inquiries that are best left to trial
courts to resolve.
Here, the ICA did not evaluate whether the Council’s
passage of the ordinance was “happenstance,” an action not
attributable to the voluntary action of the parties, which would
have justified vacatur under Munsingwear as affirmed by Bancorp.
Munsingwear, 340 U.S. at 39-40; Bancorp, 513 U.S. at 25 n.3. The
ICA did not explain how the defendants carried their burden of
establishing their “equitable entitlement to the extraordinary
remedy of vacatur.” Bancorp, 513 U.S. at 26. Finally, the ICA
did not “take account” of how vacatur would serve the public
interest. Id. at 26-27.
Homeowners also maintain their motion for
reconsideration was the first opportunity they had to address the
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question of vacatur,12 and Ordinance 3848 was passed only as part
of a “global settlement.” Homeowners also quoted what was
contended to be “Minutes of Maui County Council Planning
Committee” purporting to show that Ordinance 3848 was part of
this settlement, but the Minutes were not in the record because
the case became moot after the record was developed. Although
the record would not be able to reflect the existence of such a
settlement because the case became moot due to actions taken by
the Council after the appeal was taken, if a settlement agreement
had been demonstrated the ICA would have had to find
“extraordinary circumstances” to justify vacatur under Bancorp.
513 U.S. at 29.
Thus, the ICA did not properly analyze the vacatur
issue.
2.
The County and Homeowners agree that the circuit
court’s judgment was rendered moot as a result of the Council’s
enactment of Ordinance 3848. They also agree that the injunction
can be vacated. Homeowners argue, however, that the Council’s
passage of Ordinance 3848 was attributable to the County because
the County lobbied for its passage, Ordinance 3848 was part of a
12
The ICA’s supplemental briefing order did not require the parties
to brief the issue of vacatur. Additionally, Homeowners filed their
supplemental brief before the County and Developers, and thus did not have an
opportunity to respond to the defendants’ requests for vacatur in their
briefs. Thus, Developers’ argument that Homeowners waived their right to
argue against vacatur is without merit.
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“global settlement,” and the County was defending an illegal
action by the Mayor as opposed to an existing law. The County
counters that actions of the legislative branch were not
attributable to the executive branch, and thus the County “is in
a position akin to a party who finds its case mooted on appeal by
‘happenstance,’ rather than by events within its control.”
Regardless of which party is correct, this is precisely
the type of equity-balancing, fact-intensive situation that is
best left to the circuit court to evaluate. Because this case
became moot while on appeal, Goo, 2013 WL 5289010, at *3, the
parties did not have an opportunity to adduce evidence, present
memoranda, or make arguments to the circuit court judge, who
would have been in the best position to make factual
determinations as to the cause of the mootness and to balance the
equities of the case. The record on the vacatur issue is not
only incomplete, it is virtually non-existent, as all, or
virtually all, of the actions resulting in the case becoming moot
occurred after the appeals were filed.
A remand to the lower court is commonly invoked by
appellate courts when a case becomes moot while awaiting a
decision on appeal. See Am. Games, 142 F.3d at 1168 (describing
the Ninth Circuit’s “established procedure of remanding so the
district court can decide whether to vacate its judgment in light
of the consequences and attendant hardships of dismissal or
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refusal to dismiss and the competing values of finality of
judgment and right to relitigation of unreviewed disputes”
(quotation marks omitted)).
Given the “fact-intensive” nature of the inquiry into
whether the party seeking vacatur caused the case to become moot,
a trial court is better equipped than an appellate court
operating at a distance to fashion equitable relief. See id. at
1170 (“Given the fact-intensive nature of the inquiry required,
it seems appropriate that a district court should enjoy greater
equitable discretion when reviewing its own judgments than do
appellate courts operating at a distance.”). See also Rio Grande
Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1139
(10th Cir. 2010) (Henry, J., dissenting) (“the district court is
better equipped than we are to fashion equitable relief, and we
afford it considerable discretion in doing so”). Remand to the
lower court also better protects the “orderly operation of the
judicial system” by leaving fact-finding powers with the trial
courts and review of the trial courts’ discretion to the
appellate courts. Bancorp, 513 U.S. at 27.
Moreover, unlike an appellate court that is more likely
to be in the position of rendering an “all or nothing”
determination (vacating or not vacating), a lower court may
modify a judgment to address the interests of both parties.
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Thus, the better rule to apply is that, when a case
becomes moot on appeal and the trial court has not had an
opportunity to evaluate a motion for vacatur, the appellate
court, in the absence of exceptional circumstances, should remand
the case to the trial court to give the court the first
opportunity to evaluate the cause of the mootness based on a
complete record.
Bancorp’s preservation of Munsingwear’s “happenstance”
analysis is, in practice, impractical. As shown by Am. Games,
even the analysis of “happenstance” is “fact-intensive.” 142
F.3d at 1170. Additionally, if a case became moot while on
appeal, there would likely be no record on which an appellate
court could properly analyze whether the “controversy . . . has
become moot due to circumstances unattributable to the parties.”
Bancorp, 513 U.S. at 23.
Enabling the trial court to evaluate the issue first,
and perhaps reach a middle ground, or allow agreement of the
parties, would also be consistent with the policy of preserving
judgments. Bancorp, 513 U.S. at 26-27 (judicial precedents are
valuable to the legal community as a whole). A remand to the
trial court also furthers the interests of judicial economy, as
it avoids a situation in which an appellate court analyzes a
motion for vacatur, denies it, and then a party below files an
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HRCP Rule 60(b) motion for vacatur in the circuit court.13 Am.
Games, 142 F.3d at 1169 (“[A trial court] is not precluded by [an
appellate court’s denial of a request for vacatur] from vacating
its own judgment after an independent review of the equities, and
we therefore follow our established practice of remanding the
case to the [trial court] for such a determination.” (quoting
Cammermeyer v. Perry, 97 F.3d 1235, 1239 (9th Cir. 1996))).
Accordingly, when a case is mooted while on appeal, the
appellate court should, absent exceptional circumstances, remand
the case to the trial court for a consideration of the vacatur
issue.
3.
The ICA erred by vacating the circuit court’s December
31, 2008 Order Granting Partial Summary Judgment and judgments
and remanding to the court for dismissal given that the more
equitable rule for cases that have been rendered moot on appeal
13
HRCP Rule 60(b) provides:
On motion and upon such terms as are just, the court may
relieve a party or a party’s legal representative from a
final judgment, order, or proceeding for the following
reasons:
. . . .
(5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has
been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from
the operation of the judgment.
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is for appellate courts, in the absence of extraordinary
circumstances, to remand to the trial court to evaluate the issue
of vacatur based upon a developed record. The case should have
therefore been remanded to the circuit court to allow that court
an opportunity to consider an HRCP Rule 60(b) motion for vacatur.
The circuit court may then make factual findings, balance the
equities of the case, and exercise its discretion as to whether
its own judgment should be vacated in whole or in part. Am.
Games, 142 F.3d at 1168, 1170. See also Keahole, 110 Hawai#i at
437, 134 P.3d at 603 (Del Rosario, Circuit Judge, concurring);
Bancorp, 513 U.S. at 29.
B. Private Attorney General Doctrine
“[N]ormally, pursuant to the ‘American Rule,’ each
party is responsible for paying his or her litigation expenses.”
Superferry II, 120 Hawai#i at 218, 202 P.3d at 1263 (quotation
marks, brackets and citation omitted). This general rule is
subject to several exceptions, including the private attorney
general doctrine. Id.
The private attorney general doctrine “is an equitable
rule that allows courts in their discretion to award [attorneys’]
fees to plaintiffs who have vindicated important public rights.”
Id. (quoting Maui Tomorrow v. State, 110 Hawai#i 234, 244, 131
P.3d 517, 527 (2006)). Courts applying this doctrine consider
three basic factors: “(1) the strength or societal importance of
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the public policy vindicated by the litigation, (2) the necessity
for private enforcement and the magnitude of the resultant burden
on the plaintiff, (3) the number of people standing to benefit
from the decision.” Superferry II, 120 Hawai#i at 218, 202 P.3d
at 1263. All three prongs must be satisfied by the party seeking
attorneys’ fees. See Waiahole II, 96 Hawai#i at 31, 25 P.3d at
806 (although the parties satisfied the first and third prongs,
failure to satisfy the second prong meant the private attorney
general doctrine did not apply). Maui Tomorrow, 110 Hawai#i at
245, 131 P.3d at 528 (the private attorney general doctrine did
not apply because the plaintiffs’ case failed to satisfy the
second prong of the private attorney general doctrine).
The circuit court in this case denied attorneys’ fees
to Homeowners, holding that Homeowners failed to satisfy the
first and third factors of the doctrine. The ICA agreed with the
circuit court’s analysis and affirmed the court’s order denying
Homeowners’ motion for attorneys’ fees. Goo, 2013 WL 5289010, at
*8-12.
This court reviews circuit court awards of attorneys’
fees under the abuse of discretion standard. Honolulu Const. &
Draying Co., Ltd. v. State, Dep't of Land & Natural Res. (Irwin
Park II), 130 Hawai#i 306, 313, 310 P.3d 301, 308 (2013).
However, “we review de novo whether the trial court disregarded
rules or principles of law that arise in deciding whether or not
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a party satisfies the three factors of the private attorney
general doctrine.” Id.
In Waiahole II, the court held that the third prong of
the private attorney general doctrine appeared to be met, as the
case “involved constitutional rights of profound significance,
and all of the citizens of the state, present and future, stood
to benefit from the decision.” 96 Hawai#i at 31, 25 P.3d at 806.
The court found the impact of the decision similar to cases in
other jurisdictions that applied the doctrine to award fees in
situations involving the public trust doctrine. Id.
In Superferry II, the third criterion was satisfied
because the underlying action resulted in “generally applicable
law that established procedural standing in environmental law and
clarified the need to address secondary impacts in environmental
review[.]” 120 Hawai#i at 221, 202 P.3d at 1266. Thus, the
decision would “benefit large numbers of people over long periods
of time.” Id. The court in the underlying case had expressly
stated 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 343, 167 P.3d at 336)).
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Similarly in Kaleikini v. Yoshioka, the third prong was
satisfied because the court’s opinion “established ‘generally
applicable law’ regarding standing to enforce historic
preservation laws” and ensure that such laws would be enforced as
written, “for the public good” and “in the public interest[.]”
129 Hawai#i 454, 466, 304 P.3d 252, 264 (2013). The court in
Nelson v. Hawaiian Homes Commission also found the third prong
satisfied where the underlying decision allowed the Department of
Hawaiian Home Lands to shift funding from administrative expenses
to operating expenses, thereby “provid[ing] a benefit to the
Hawaiian Home Lands trust, impacting at least the tens of
thousands of known beneficiaries on the waiting list, and
ultimately benefitting the State as a whole, because stewardship
of Hawaiian Home Lands was an obligation taken on by the State as
a condition for admission into the union.” 130 Hawai#i 162, 167-
68, 307 P.3d 142, 147-48 (2013).
In Irwin Park II, the court considered the application
of the third prong in “a situation where the public policy
involves a discrete property or historic site open to the general
public.” 130 Hawai#i at 317-18, 310 P.3d at 312-13. The court
explained that the underlying decision, which denied a petition
to expunge a deed restriction requiring a historic site to be
preserved as a public park, resulted in “benefits [that] would
clearly accrue to residents and tourists who visit the Aloha
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Tower area through the continued preservation of Irwin Park.”
Id. at 318, 310 P.3d at 313.
The court recognized that the case “involved a discrete
determination, rather than a direct challenge to a law or
policy.” Id. However, although the “litigation concerned a
specific property, . . . the result vindicated the dedication of
public parks and historic sites across the state.” Id. The
court noted that the litigation prevented the state agency from
“altering a historic site and acting in contravention” of
applicable laws and the original grantor’s intent in dedicating
the property to be used as a public park. Id. at 318-19, 310
P.3d at 313-14. Thus, the case had “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.” Id. at 319, 310 P.3d at 314.
This case in contrast did not involve the enforcement
of a law of general state-wide applicability, did not benefit a
substantial number of people on a scale comparable to decisions
such as Superferry II or Waiahole II, and lacks general
precedential value.
The circuit court’s order in this case established that
the MLPD as a whole was subject to the Height Restriction Law.
The circuit court enjoined the County from taking any action that
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would conflict with the court’s determination of the applicable
height restrictions, as applied to the MLPD. Thus, the direct
impact of the court’s order was limited to the MLPD subdivisions.
Even within the MLPD, as the circuit court recognized,
it was “very unclear” how many people would actually benefit from
the court’s ruling that the Height Restriction Law applied. The
court’s ruling did not result in removing the improvements that
blocked Homeowners’ view, and did not benefit the other lot
owners within the MLPD who were prevented from building homes on
their property.
Finally, this case involved private property and lacks
precedential value, given the subsequent enactment that modified
the Height Restriction Law by establishing that the pre-1991
height definition governed project districts that received phase
II approval prior to September 4, 1991.
Accordingly, this case does not satisfy the third prong
of the private attorney general doctrine pertaining to the number
of people standing to benefit from the decision. Because we find
that Homeowners’ failed to satisfy the third prong of the private
attorney general doctrine, we do not examine the first two
prongs. Waiahole II, 96 Hawai#i at 31, 25 P.3d at 806; Maui
Tomorrow, 110 Hawai#i at 245, 131 P.3d at 528. Thus, the ICA did
not err in finding that the circuit court did not abuse its
discretion in denying Homeowners’ request for attorneys’ fees.
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V. Conclusion
For the foregoing reasons, we vacate that portion of
the ICA’s judgment that vacated the circuit court’s judgments and
December 31, 2008 Order Granting Partial Summary Judgment. The
case is remanded to the circuit court for further proceedings
consistent with this opinion. We affirm that portion of the
ICA’s judgment that affirmed the circuit court’s denial of
Homeowners’ request for attorneys’ fees.
David J. Gierlach and /s/ Mark E. Recktenwald
Lance D. Collins
for petitioners /s/ Paula A. Nakayama
Patrick K. Wong, /s/ Simeon R. Acoba, Jr.
Caleb P. Rowe,
Brian T. Moto, and /s/ Sabrina S. McKenna
Jane E. Lovell (Madelyn S.
D’Enbeau on the briefs) /s/ Richard W. Pollack
for respondents Mayor Alan
Arakawa, Successor-in-
Interest to Mayor Charmaine
Tavares, William Spence,
Director of Planning, County
of Maui, Successor-in-
Interest to Director Jeff
Hunt, County of Maui
Ronald T. Ogomori,
Nathan H. Yoshimoto, and
T.F. Mana Moriarty
for respondents New Sand
Hills, LLC., VP and PK (ML),
LLC., KCOM Corp., and
Sandhills Estates Community
Association
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