Kaleikini v. Yoshioka.Â

***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Electronically Filed
Supreme Court
SCAP-11-0000611
02-MAY-2013
09:24 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

PAULETTE KA#ANOHIOKALANI KALEIKINI,
Petitioner/Plaintiff-Appellant,

vs.

WAYNE YOSHIOKA, in his official capacity as Director of the City
and County of Honolulu’s Department of Transportation Services;
CITY AND COUNTY OF HONOLULU; HONOLULU CITY COUNCIL; KIRK
CALDWELL, in his official capacity as Mayor; CITY AND COUNTY OF
HONOLULU DEPARTMENT OF TRANSPORTATION SERVICES; CITY AND COUNTY
OF HONOLULU DEPARTMENT OF PLANNING AND PERMITTING; WILLIAM J.
AILA, JR., in his official capacity as Chairperson of the Board
of Land and Natural Resources and state historic preservation
officer; PUA#ALAOKALANI AIU, in her official capacity as
administrator of the State Historic Preservation Division;
BOARD OF LAND AND NATURAL RESOURCES; DEPARTMENT OF LAND AND
NATURAL RESOURCES; NEIL ABERCROMBIE, in his official
capacity as Governor; and O#AHU ISLAND BURIAL COUNCIL,
Respondents/Defendants-Appellees.

NO. SCAP-11-0000611

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 11-1-0206-01)

MAY 2, 2013

RECKTENWALD, C.J., NAKAYAMA, AND MCKENNA, JJ., CIRCUIT
JUDGE BROWNING, IN PLACE OF ACOBA, J., RECUSED, AND
CIRCUIT JUDGE TO#OTO#O, IN PLACE OF DUFFY, J., RECUSED
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

OPINION OF THE COURT BY RECKTENWALD, C.J.

Paulette Ka#anohiokalani Kaleikini requests that this

court award $255,158.00 in attorney’s fees and $2,510.24 in costs

against City and State defendants1 for work performed in the

trial court and on appeal in relation to Kaleikini v. Yoshioka,

128 Hawai#i 53, 283 P.3d 60 (2012). For the reasons set forth

below, we grant in part and deny in part Kaleikini’s request for

fees and costs.

I. Background

A. Underlying appeal

The relevant factual background is set forth in this

court’s published opinion:
Kaleikini brought this suit against the City and
County of Honolulu and the State of Hawai#i,
challenging the approval of the Honolulu High-Capacity
Transit Corridor Project (rail project or project).
The rail project involves the construction of an
approximately 20-mile fixed guideway rail system from
West O#ahu to Ala Moana Center. Construction on the

1
The City defendants are: Wayne Yoshioka, in his official capacity
as Director of the City and County of Honolulu’s Department of Transportation
Services; the City and County of Honolulu; the Honolulu City Council; Peter
Carlisle, in his official capacity as Mayor of the City and County of
Honolulu; the City and County of Honolulu Department of Transportation
Services; and the City and County of Honolulu Department of Planning and
Permitting. See Kaleikini v. Yoshioka, 128 Hawai#i 53, 56 n.1, 283 P.3d 60,
63 n.1 (2012). Because Peter Carlisle was sued in his official capacity, Kirk
Caldwell was automatically substituted in his place as respondent/defendant-
appellee. Hawai#i Rules of Appellate Procedure (HRAP) Rule 43(c)(1) (2012).
The State defendants are: William J. Aila, Jr., in his official
capacity as Chairperson of the Board of Land and Natural Resources (BLNR) and
state historic preservation officer; Pua#alaokalani Aiu, in her official
capacity as administrator of the State Historic Preservation Division (SHPD);
the BLNR; the Department of Land and Natural Resources (DLNR); Neil
Abercrombie, in his official capacity as Governor of the State of Hawai#i; and
the O#ahu Island Burial Council (OIBC). However, Kaleikini explained in her
complaint that the OIBC was named as “an interested party,” whose interests
were “more properly aligned with [Kaleikini].” Accordingly, reference to the
State in this opinion does not include the OIBC. See id. at 56 n.2, 283 P.3d
at 63 n.2.

-2-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

rail project is planned to take place in four phases
. . . . It is undisputed that the rail project has a
“high” likelihood of having a potential effect on
archeological resources in certain areas of Phase 4,
which includes Kaka#ako.
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 project. More
specifically, Kaleikini argued that Hawai#i Revised
Statutes chapters 6E, 343, and 205A, and their
implementing rules, require that an archaeological
inventory survey be completed prior to any approval or
commencement of the project. Kaleikini asserted that
the failure to complete an archaeological inventory
survey prior to the start of construction jeopardized
the integrity of native Hawaiian burial sites by
foreclosing options such as not building the rail,
changing its route, or using a technology that would
have less impact on any sites.
The City moved to dismiss Kaleikini’s complaint
and/or for summary judgment, and the State joined in
the motion. The City acknowledged that an
archaeological inventory survey was required for each
phase of the rail project. However, . . . . the City
and State contended that as long as an archeological
inventory survey had been completed for a particular
phase, construction could begin on that part of the
project even if the surveys for the other phases had
not yet been completed.

Id. at 56-57, 283 P.3d at 63-64 (footnotes omitted).

The circuit court granted summary judgment in favor of

the City and State on all of Kaleikini’s claims. Id. at 57, 283

P.3d at 64. Kaleikini appealed, and this court held that “the

SHPD failed to follow its own rules when it concurred in the rail

project prior to the completion of an archaeological inventory

survey for the entire project”:
In sum, the SHPD 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.

-3-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Id. at 57, 66, 283 P.3d at 64, 73.

Accordingly, this court vacated the circuit court’s

judgment on Counts 1 through 4 of Kaleikini’s complaint, which

challenged the rail project under HRS chapter 6E, and remanded

for further proceedings. Id.

B. Request for attorney’s fees and costs

Kaleikini timely filed a request for attorney’s fees

and costs. Kaleikini requests costs pursuant to HRAP Rule 39,2

2
HRAP Rule 39 (2012) provides, in pertinent part:

(a) Civil Costs; To Whom Allowed. Except in
criminal cases or as otherwise provided by law, if an
appeal or petition is dismissed, costs shall be taxed
against the appellant or petitioner upon proper
application unless otherwise agreed by the parties or
ordered by the appellate court; if a judgment is
affirmed or a petition denied, costs shall be taxed
against the appellant or petitioner unless otherwise
ordered; if a judgment is reversed or a petition
granted, costs shall be taxed against the appellee or
the respondent unless otherwise ordered; if a judgment
is affirmed in part and reversed in part, or is
vacated, or a petition granted in part and denied in
part, the costs shall be allowed only as ordered by
the appellate court. If the side against whom costs
are assessed has multiple parties, the appellate court
may apportion the assessment or impose it jointly and
severally.
(b) Costs For and Against the State of Hawai#i.
In cases involving the State of Hawai#i or an agency
or officer thereof, if an award of costs against the
State is authorized by law, costs shall be awarded in
accordance with the provisions of this rule; otherwise
costs shall not be awarded for or against the State of
Hawai#i, its agencies, or its officers acting in their
official capacities.
(c) Costs Defined. Costs in the appellate courts
are defined as: (1) the cost of the original and one
copy of the reporter’s transcripts if necessary for
the determination of the appeal; (2) the premiums paid
for supersedeas bonds or other bonds to preserve
rights pending appeal; (3) the fee for filing the
appeal; (4) the cost of printing or otherwise
producing necessary copies of briefs and appendices,
provided that copying costs shall not exceed 20¢ per
page; (5) necessary postage, cost of facsimiles,
(continued...)

-4-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Hawai#i Rules of Civil Procedure (HRCP) Rule 54(d),3 and HRS

§ 607-24.4 Specifically, she requests costs in the amount of

$2,510.24, which includes both trial court and appellate costs.

Alternatively, she requests costs in the amount of $343.00 for

the appeal only.

Kaleikini also requests attorney’s fees pursuant to the

private attorney general doctrine, in relation to work performed

2
(...continued)
intrastate travel, long distance telephone charges;
and (6) any other costs authorized by statute or rule.
3
HRCP Rule 54(d) (2011) provides:

(d) Costs; attorneys’ fees.
(1) Costs other than attorneys’ fees. Except
when express provision therefor is made either in a
statute or in these rules, costs shall be allowed as
of course to the prevailing party unless the court
otherwise directs; but costs against the State or a
county, or an officer or agency of the State or a
county, shall be imposed only to the extent permitted
by law. Costs may be taxed by the clerk on 48 hours’
notice. On motion served within 5 days thereafter,
the action of the clerk may be reviewed by the court.
4
HRS § 607-24 (1993) provides, in pertinent part:

Neither the State nor any county or any political
subdivision, board, or commission thereof, nor any
officer, acting in the officer’s official capacity on
behalf of the State or any county or other political
subdivision, board, or commission thereof, shall be
taxed costs or required to pay or make any deposit for
the same or file any bond in any case whether for
costs, on motion for new trial, or on appeal, or for
any other purpose whatsoever. In all cases in which a
final judgment or decree is obtained against the
State, county, or other political subdivision or any
board or commission thereof, any and all deposits for
costs made by the prevailing party shall be returned
to the prevailing party, and the prevailing party
shall be reimbursed by the State, county, or other
political subdivision, board, or commission thereof,
as the case may be, all actual disbursements, not
including attorney’s fees or commissions, made by the
prevailing party and approved by the court.

(Emphasis added).

-5-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

by David Kimo Frankel and Ashley Obrey, Native Hawaiian Legal

Corporation (NHLC) attorneys, at both the trial and appellate

levels. Specifically, Kaleikini seeks fees totaling $127,579.00,

which includes $96,495.00 for 275.7 hours of work performed by

Frankel at the rate of $350.00 per hour, and $31,084.00 for 163.6

hours of work performed by Obrey at the rate of $190.00 per hour.

Alternatively, Kaleikini seeks fees totaling $54,995.00 for the

appeal only, which includes $48,440.00 for 138.4 hours of work

performed by Frankel, and $6,555.00 for 34.5 hours of work

performed by Obrey. Additionally, Kaleikini asks that her

requested fees be enhanced by a multiplier of two.

The City and State filed objections to Kaleikini’s

request, and Kaleikini filed a reply to each of the objections.5

II. DISCUSSION

As set forth below, we resolve Kaleikini’s request as

follows. First, we deny Kaleikini’s request for fees and costs

for trial level work, without prejudice to Kaleikini seeking

those fees in the circuit court. Second, we conclude that

Kaleikini is entitled to an award of appellate fees because (1)

Kaleikini prevailed on the disputed main issues before this court

and therefore is the prevailing party on appeal; and (2)

5
Faith Action for Community Equity and Pacific Resource Partnership
(FACE/PRP) previously filed an amicus curiae brief in this case, and also
filed an objection to Kaleikini’s fees request “to the extent [it] may be read
to seek attorneys’ fees and costs against FACE/PRP[.]” Because Kaleikini does
not seek fees or costs from FACE/PRP, we do not discuss this objection
further.

-6-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Kaleikini’s case meets all three prongs of the private attorney

general doctrine. Third, Kaleikini’s request for fees and costs

against the State is barred by sovereign immunity. Fourth,

although we award fees against the City, we reduce some of

Kaleikini’s requested hours and her attorneys’ requested hourly

rates to achieve a reasonable attorney fee award. Fifth,

Kaleikini is not entitled to an enhancement of the lodestar

amount. Finally, Kaleikini is entitled to her requested

appellate costs.

Accordingly, for the reasons set forth below, we award

Kaleikini $41,192.00 in fees and $343.00 in costs against the

City.

A. Kaleikini’s request for fees and costs attributable to work
performed at the trial level is more properly within the
trial court’s discretion

Kaleikini seeks fees and costs relating to work

performed both at the trial level and on appeal. Kaleikini

asserts that “[i]t is not entirely clear that this Court is

prohibited from awarding attorneys’ fees for work at the trial

court level[.]” (Citing Fought & Co., Inc. v. Steel Eng’g &

Erection, Inc., 87 Hawai#i 37, 52, 951 P.2d 487, 502 (1998); S.

Utsunomiya Enters., Inc. v. Moomuku Country Club, 76 Hawai#i 396,

402, 879 P.2d 501, 507 (1994)). She further argues, “Given that

the work undertaken in the circuit court was essential in order

to prevail, all the fees from the entire case should be awarded.”

The City and State argue that Kaleikini should seek fees incurred

-7-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

at the trial level in the trial court. Kaleikini responds that

this court should award her trial level fees and costs based on

principles of judicial economy.

“Although HRAP Rule 39(d) and HRS § 607-14[6] could be

construed to allow this court to make such awards [of trial-level

attorney’s fees], decisions about fees incurred at the trial

level are more properly within the trial court’s discretion.” S.

Utsunomiya Enterprises, Inc., 76 Hawai#i at 402, 879 P.2d at 507.

This is because
[t]here are a multitude of situations that arise
during litigation at the trial level that may
contribute to the legal and strategic decisions made
by each party; the trial judge is in the best position
to ascertain the motivations of the parties and the
reasonableness of actions undertaken by counsel and
the parties.

Nelson v. Univ. of Hawai#i, 99 Hawai#i 262, 269, 54 P.3d 433, 440

(2002).

Accordingly, the trial court is in the best position to

determine the reasonableness of fees and costs incurred at the

trial level. We therefore deny Kaleikini’s request for fees and

costs for work performed at the trial level, without prejudice to

her seeking those fees and costs in the circuit court.

Accordingly, the remainder of this opinion addresses only

Kaleikini’s request for fees and costs attributable to her

appeal.

6
HRS § 607-14 governs attorneys’ fees in actions in the nature of
assumpsit and is inapplicable in the instant case.

-8-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

B. Kaleikini is the prevailing party on appeal

The first issue this court must resolve regarding

Kaleikini’s request for fees and costs is whether Kaleikini is

the prevailing party on appeal. See Sierra Club v. Dep’t of

Transp. (Superferry II), 120 Hawai#i 181, 215, 202 P.3d 1226,

1260 (2009) (“The first issue that must be determined regarding

the fee and cost award is whether Sierra Club was the prevailing

party.”). Kaleikini argues that she is the prevailing party

because she prevailed on the disputed main issue in her appeal.

The City argues Kaleikini did not prevail on the disputed main

issue because she did not prevail on the claims she brought

pursuant to HRS chapter 343 and 205A.7

Where, as here, there is no final judgment clearly

stating which party prevailed,8 the court “is required to first

identify the principle issues raised by the pleadings and proof

in a particular case, and then determine, on balance, which party

prevailed on the issues.” Superferry II, 120 Hawai#i at 216, 202

P.3d at 1261 (quoting MFD Partners v. Murphy, 9 Haw. App. 509,

515, 850 P.2d 713, 716 (1992)). A party “will be deemed to be

the successful party for the purpose of taxing costs and

7
The State does not present any argument on this issue.
8
In Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawai#i 92,
122, 176 P.3d 91, 121 (2008), this court reviewed a trial court’s award of
attorney’s fees and costs entered pursuant to HRS § 607-14 (Supp. 1997), and
noted that, “for purposes of HRS § 607-14, the party in whose favor judgment
was entered is the prevailing party.” In the instant case, this court did not
enter judgment in favor of either party, but rather vacated the circuit
court’s judgment and remanded for further proceedings. Accordingly, Kamaka
does not resolve whether Kaleikini is the prevailing party on appeal.

-9-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

attorney’s fees” “where [that] party prevails on the disputed

main issue, even though not to the extent of his original

contention[.]” Food Pantry, Ltd. v. Waikiki Bus. Plaza, Inc., 58

Haw. 606, 620, 575 P.2d 869, 879 (1978) (footnote omitted).

Here, Kaleikini’s complaint in the circuit court

alleged six counts:
First, Kaleikini alleged that the City’s grant of a
special management area permit for the rail project
and its decision to commence construction on the
project prior to the completion of an AIS violated HRS
§§ 6E-8 and 6E-42, and their implementing rules, HAR
chapters 13-275 (2002) and 13-284 (2002) (Counts 1-2).
Kaleikini further alleged that the DLNR, through the
SHPD, violated HRS §§ 6E-8 and 6E-42, and their
implementing rules, in authorizing an AIS to be
postponed (Counts 3-4). Kaleikini also alleged that
Governor Abercrombie violated HRS chapter 343 by
accepting the final EIS for the rail project, because
the final EIS did not contain an AIS and was therefore
incomplete (Count 5). Finally, Kaleikini alleged that
the City and State Defendants had failed to “give full
consideration of the impact of the [rail project] on
iwi and cultural and historic values prior to
decisionmaking” (Count 6).

Kaleikini, 128 Hawai#i at 60-61, 293 P.3d at 67-68 (footnotes

omitted).

At the heart of each count was Kaleikini’s argument

that an AIS must be completed for all four phases of the rail

project prior to any approval or commencement of the project.

See id. at 61, 283 P.3d at 68. The circuit court orally granted

summary judgment in favor of the City and State on all counts on

the ground that the phased approach to the AIS for the rail

project was not prohibited by law. Id. at 66, 283 P.3d at 73.

Accordingly, the circuit court entered final judgment in favor of

the City, State, and OIBC, and against Kaleikini on all of her

-10-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

claims. Id. Thus, the City, State, and OIBC were the prevailing

parties in the circuit court.

Kaleikini’s primary argument on appeal was that the

City and State failed to comply with HRS §§ 6E-8 and 6E-42 and

their implementing rules by allowing a decision on the project to

be made prior to the completion of an AIS for the entire project

(Counts 1-4). Id. Additionally, Kaleikini argued that the final

EIS was inadequate under HRS chapter 343 because it did not

contain a completed AIS (Count 5), id. at 81, 283 P.3d at 88, and

that the City and State failed to give full consideration to

cultural and historic values, as required under HRS chapter 205A

(Count 6), id. at 84, 283 P.3d at 91.

This court held that the circuit court erred in

granting summary judgment in favor of the City and State on

Counts 1 through 4 because an AIS for all four phases of the

project was required prior to approval of the project. Id. at

72, 283 P.3d at 79. Accordingly, this court vacated the judgment

with respect to these counts, and remanded to the circuit court

for further proceedings. Id. at 88, 283 P.3d at 95. However,

this court held that the circuit court properly granted summary

judgment in favor of the City and State on Counts 5 and 6. Id.

The City argues that the case is “[a]t best, a draw”

because Kaleikini did not prevail on Counts 5 and 6. However,

this court noted that Kaleikini’s “primary argument on appeal”

concerned Counts 1 through 4, and this court ruled in favor of

-11-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Kaleikini on those counts. Id. at 66, 68, 283 P.3d at 73, 75.

Because Kaleikini prevailed on the “primary argument on

appeal[,]” she prevailed on the disputed main issue.

The City also argues that Kaleikini cannot be deemed

the prevailing party because this court remanded for further

proceedings and the proceedings therefore have not concluded. In

support of this argument the City cites Nelson. Nelson concerned

a request for fees brought pursuant to statute, which allowed for

fees “in addition to any judgment awarded to the plaintiff or

plaintiffs[.]” 99 Hawai#i at 265, 54 P.3d 436 (emphasis added).

Thus, this court was required to determine whether the plaintiff

had been awarded a “judgment” within the meaning of the statute.

Id. This court noted that the forms of relief envisioned by the

statute required a finding in favor of the plaintiff on the

merits. Id. at 266, 54 P.3d at 437. “Consequently, a judgment

on appeal that merely vacates a trial court judgment unfavorable

to the plaintiff and places the plaintiff back where the

plaintiff started does not, in itself, provide any grounds for an

award of fees to the plaintiff.” Id.

Nelson is distinguishable from the instant case for two

reasons. First, Kaleikini does not seek fees pursuant to

statute, but rather pursuant to the private attorney general

doctrine. As discussed below, the private attorney general

doctrine does not require that a plaintiff receive a final

-12-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

judgment in his or her favor before fees may be awarded.9

Second, this court ruled in favor of Kaleikini on the merits of

Counts 1 through 4. Kaleikini, 128 Hawai#i at 73, 81, 283 P.3d

at 80, 88. This court remanded to the circuit court to determine

the proper relief to be awarded on these counts. Id. at 81, 283

P.3d at 88. Thus, unlike in Nelson, this court’s ruling in the

instant case did not place the plaintiff “back where the

plaintiff started[.]” 99 Hawai#i at 266, 54 P.3d at 437.

Accordingly, Kaleikini is the prevailing party on

appeal for the purposes of attorney’s fees.

C. The private attorney general doctrine applies

“Normally, pursuant to the ‘American Rule,’ each party

is responsible for paying his or her own litigation expenses.

This general rule, however, is subject to a number of exceptions:

attorney’s fees are chargeable against the opposing party when so

authorized by statute, rule of court, agreement, stipulation, or

precedent.” Superferry II, 120 Hawai#i at 218, 202 P.3d at 1263

(brackets omitted) (quoting Fought, 87 Hawai#i at 50-51, 951 P.2d

at 500-01). “This court has [also] recognized a number of

equitable exceptions to the ‘American Rule.’” In re Water Use

Permit Applications (Waiâhole II), 96 Hawai#i 27, 29, 25 P.3d

9
This court considers three “basic factors” in determining whether
the private attorney general doctrine applies: “(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.” Superferry II, 120 Hawai#i at 218, 202 P.3d at 1263 (quoting Maui
Tomorrow v. State, 110 Hawai#i 234, 244, 131 P.3d 517, 527 (2006)).

-13-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

802, 804 (2001). One such exception is provided by 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.’” Id.;

see also Superferry II, 120 Hawai#i at 218, 202 P.3d at 1263

(quoting Maui Tomorrow, 110 Hawai#i at 244, 131 P.3d at 527).

This court considers three “basic factors” in

determining whether the private attorney general doctrine

applies: “(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.” Superferry II, 120 Hawai#i at 218, 202 P.3d

at 1263 (quoting Maui Tomorrow, 110 Hawai#i at 244, 131 P.3d at

527).

As set forth below, all three prongs of the private

attorney general doctrine have been satisfied in the instant

case. Accordingly, we may award attorney’s fees to Kaleikini.10

10
The State makes several arguments as to why the private attorney
general doctrine should not apply. First, the State argues that Kaleikini
should not be awarded fees because the legislature did not intend that private
persons be awarded fees in HRS chapter 6E cases, except to the extent
authorized by HRS § 607-25(e). The State appears to argue that HRS § 607-
25(e) is the exclusive means for seeking attorney’s fees in cases brought
pursuant to HRS chapter 6E. Fees are not available pursuant to HRS § 607-
25(e) in this case. HRS § 607-25(e) (Supp. 2011) (providing for fees “[i]n
any civil action in this State where a private party sues for injunctive
relief against another private party who has been or is undertaking any
development without obtaining all permits or approvals required by law from
government agencies”) (emphasis added).
This court rejected an argument similar to the State’s in
Superferry II, where it held that HRS § 607-25 is not the exclusive means for
(continued...)

-14-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

See id.

1. The strength or societal importance of the public
policy vindicated by the litigation

Kaleikini asserts that this case has vindicated an

issue of “great public importance[,]” specifically the historic

preservation and protection of iwi. Kaleikini also asserts that

this case vindicated at least four other important public

policies: (1) the historic preservation review process is

sequential and requires an AIS prior to the SHPD’s concurrence in

10
(...continued)
seeking fees in an action brought pursuant to HRS chapter 343 because HRS
§ 607-25 focuses on “development,” which is only a narrow subset of actions
that may lead to a violation of HRS § 343-5. 120 Hawai#i at 222-25, 202 P.3d
at 1267-70. Although the underlying claims in Superferry II arguably involved
a challenge to approval of a “development,” see id. at 186, 202 P.3d at 1231
(noting that the project involved Hawai#i Superferry, Inc.’s proposal to
“develop and operate a high-speed roll-on/roll-off ferry service”), this court
nonetheless held that fees were available pursuant to the private attorney
general doctrine, id. at 222-25, 202 P.3d at 1267-70. Similarly, here, HRS
chapter 6E governs conservation of historic properties in a variety of
contexts, and not solely in relation to “development.” See, e.g., HRS §§ 6E-8
and 6E-42. Accordingly, the State’s argument is without merit for the reasons
set forth in Superferry II.
Second, the State argues that this court should apply the test set
forth in Reliable Collection Agency v. Cole, 59 Haw. 503, 507, 584 P.2d 107,
109 (1978), for determining whether attorney’s fees are available. This
argument is without merit. The purpose of the Reliable test is to determine
whether a statute implicitly provides a private right of action. Id. This
inquiry focuses on whether a private party can sue to enforce a statute.
Cnty. of Hawai#i v. Ala Loop Homeowners, 123 Hawai#i 391, 406 n.20, 235 P.3d
1103, 1118 n.20 (2010). It does not address whether a private party may
recover attorney’s fees.
Moreover, this court has never applied the Reliable test in
considering whether an award of fees is appropriate pursuant to the private
attorney general doctrine, see Superferry II, 120 Hawai#i at 219-25, 202 P.3d
at 1264-70, and we decline to do so here. Application of the Reliable test
would render the private attorney general doctrine wholly illusory: if the
relevant statute reflects a legislative intent to award attorney’s fees, then
the “equitable powers of the judiciary to provide” such fees pursuant to the
private attorney general doctrine, Superferry II, 120 Hawai#i at 219, 202 P.3d
at 1264 (citation omitted), would be unnecessary. In contrast, if a statute
is silent as to the availability of fees, the private attorney general
doctrine would be unavailable. In light of this court’s decision to award
fees pursuant to the private attorney general doctrine in the face of
legislative silence regarding fees, id. at 221-23, 202 P.3d at 1266-68, the
State’s argument is unpersuasive.

-15-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

a project; (2) phasing of the historic preservation review

process is impermissible; (3) standing may exist pursuant to HRS

§ 6E-13(b), even where an irreparable injury has not yet

occurred; and (4) procedural injury is a basis for standing

pursuant to HRS § 6E-13(b).

The City argues that the issue on which Kaleikini

prevailed was “ultimately one of process that turned on the

Court’s interpretation of the definition of ‘project area’ in the

applicable administrative regulations and not any constitutional

right or provision[.]” (Emphasis in original). The State

similarly argues that “this case is not about the protection of

iwi[,]” but rather involves a “relatively arcane dispute as to

how, not whether, to protect the iwi[.]” Moreover, the State

argues that application of the private attorney general doctrine

in this case would “swallow the general American rule” because

all laws involve important public policy interests or they “would

not have been enacted in the first place.”

Even assuming that the City and State are correct that

the policies vindicated by this case are largely procedural, this

court has found the first prong of the private attorney general

doctrine satisfied in other similar circumstances. In Superferry

II, this court considered whether the first prong was satisfied

in a dispute over the need for an environmental assessment for

the Hawai#i Superferry. 120 Hawai#i at 186-87, 202 P.3d at 1231-

32. The prevailing party argued that this prong was satisfied

-16-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

because the litigation was “responsible for establishing the

principle of procedural standing in environmental law in Hawai#i

and clarifying the importance of addressing the secondary impacts

of a project in the environmental review process pursuant to HRS

chapter 343.” Id. at 220, 202 P.3d at 1265. This court agreed.

Id.

Here, Kaleikini’s case was responsible for clarifying

the principle of procedural standing in historic preservation law

in Hawai#i, 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.

Kaleikini, 128 Hawai#i at 71, 283 P.3d at 78; see Superferry II,

120 Hawai#i at at 220, 202 P.3d at 1265. Accordingly, the first

prong of the private attorney general doctrine is satisfied in

this case.

2. The necessity for private enforcement and the magnitude
of the resultant burden on the plaintiff

Kaleikini asserts that private enforcement was

essential because she was solely responsible for challenging the

City’s failure to prepare an AIS prior to decision making and

construction, and the City and State either completely abandoned,

or actively opposed, her cause. The City responds that neither

the City nor the State abandoned their duties under HRS chapter

6E, but rather erroneously believed that their plan was lawful.

The State acknowledges that private enforcement may have been

-17-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

necessary, but argues that attorney’s fees are not necessary

because other private parties may have been “willing to pay

market rates (indeed above market rates) to bring the suit if

plaintiff had not done so.” The State also asserts that NHLC

could have represented Kaleikini pro bono.

A review of this court’s case law concerning the second

prong of the private attorney general doctrine is instructive.

This court first examined the private attorney general doctrine

in Waiâhole II, and concluded that the second prong of the

doctrine was not satisfied in that case. 96 Hawai#i at 31, 25

P.3d at 806. There, the underlying dispute concerned “water

distributed by the Waiâhole Ditch System, a major irrigation

infrastructure on the island of Oahu[.]” In re Water Use Permit

Applications (Waiâhole I), 94 Hawai#i 97, 110, 9 P.3d 409, 422

(2000). Following a lengthy and complex contested case hearing,

the Commission on Water Resource Management (Commission) issued a

final decision with respect to release of water from the System,

which focused primarily on the “public trust doctrine.” Id. at

110, 113, 9 P.3d at 422, 425. The Commission concluded that,

“[u]nder the State Constitution and the public trust doctrine,

the State’s first duty is to protect the fresh water resources

(surface and ground) which are part of the public trust res.”

Id. at 113, 9 P.3d at 425. On appeal, this court held, inter

alia, that “article XI, section 1 and article XI, section 7 [of

the Hawai#i Constitution] adopt the public trust doctrine as a

-18-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

fundamental principle of constitutional law in Hawai#i.” Id. at

132, 9 P.3d at 444. Nevertheless, this court reversed in part

the Commission’s decision. Id. at 189, 9 P.3d at 501.

Subsequently, multiple public parties, denominated the

Windward Parties, sought attorney’s fees against both private and

governmental parties involved in the dispute. Waiâhole II, 96

Hawai#i at 28-29, 25 P.3d at 803-04. This court noted that, in

cases from other jurisdictions in which the second prong of the

private attorney general doctrine had been satisfied, “the

plaintiffs served as the sole representative of the vindicated

public interest. The government either completely abandoned, or

actively opposed, the plaintiff’s cause.” Id. at 31, 25 P.3d at

806 (citations omitted). However, this court observed that the

Windward Parties
represented one of many competing public and private
interests in an adversarial proceeding before the
governmental body designated by constitution and
statute as the primary representative of the people
with respect to water resources, the Commission on
Water Resources Management. The Commission duly
recognized its duties as trustee of state water
resources, even to an extent further than this court
deemed appropriate. . . . Nonetheless, the court made
no rulings regarding the ultimate disposition of water
resources, but simply remanded the matter to the
commission for further findings and conclusions.

The relevant point, of course, is not the extent
of the Windward Parties’ success on appeal, but,
rather, the role played by the government. In sum,
unlike other cases, in which the plaintiffs
single-handedly challenged a previously established
government law or policy, in this case, the Windward
Parties challenged the decision of a tribunal in an
adversarial proceeding not contesting any action or
policy of the government. The Windward Parties cite
no case in which attorneys’ fees were awarded in an
adversarial proceeding against a tribunal and the
losing parties and in favor of the prevailing party,
based on the reversal of the tribunal’s decision on

-19-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

appeal. Nor does such a rule appear prudent from a
policy standpoint, where public tribunals in
adversarial settings must invariably consider and
weigh various “public interests.” Therefore, we hold
that this case does not qualify for an award of
attorneys’ fees under the conventional application of
the private attorney general doctrine.

Id. at 31-32, 25 P.3d at 806-07 (citations omitted).

Similarly, in Maui Tomorrow, this court determined that

the second prong of the private attorney general doctrine had not

been satisfied in an action where the plaintiff contested “a

policy of the BLNR to lease water rights without performing the

required analysis.” 110 Hawai#i at 245, 131 P.3d at 528. This

court concluded that the private attorney general doctrine was

not applicable because the State “did not ‘abandon’ or ‘actively

oppose’ [the plaintiff’s] cause[,]” but rather concluded that an

agency other than the BLNR was the appropriate agency to fulfill

the State’s duty. Id. This court also analogized Maui Tomorrow

to Waiâhole II, noting that Maui Tomorrow
involve[d] an appeal from the decision of a tribunal
in an adversarial proceeding, and the circuit court
‘made no rulings regarding the ultimate disposition of
water resources, but simply remanded the matter . . .
for further findings and conclusions.’ Like the
Windward Parties [in Waiâhole II, the Maui Tomorrow
plaintiffs] cite[d] no cases in which fees were
awarded against a tribunal and the losing parties
based on the reversal of the tribunal’s decision on
appeal.

Id. (citation omitted).

In contrast, in Superferry II, this court found that

the second prong of the private attorney general doctrine was

satisfied, where “the plaintiffs . . . were comprised of two

non-profit organizations and an unincorporated association” who

-20-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

were “solely responsible for challenging [the Department of

Transportation’s (DOT)] erroneous application of its

responsibilities under HRS chapter 343.” 120 Hawai#i at 220, 202

P.3d at 1265. In that case, “DOT exempted the Superferry project

from the requirements of HRS chapter 343 without considering its

secondary impacts on the environment[,]” “[i]n contravention of

its responsibilities under the laws of this state[.]” Id. at

221, 202 P.3d at 1266.

This court distinguished Superferry II from Maui

Tomorrow, noting that, in Maui Tomorrow,
the challenged government policy resulted from an
erroneous understanding that another state agency was
to perform the duty at issue. . . . In this case, DOT
simply did not recognize its duty to consider both the
primary and secondary impacts of the Superferry
project on the environment. DOT was not under the
erroneous understanding that another agency was
considering those impacts, as in Maui Tomorrow;
rather, in this case DOT wholly abandoned that duty by
issuing an erroneous exemption to Superferry.

Id. (citation omitted).

Unlike the multiple public parties in Waiâhole II, 96

Hawai#i at 28-29, 25 P.3d at 803-04, or even the “two non-profit

organizations and an unincorporated association” in Superferry

II, 120 Hawai#i at 220, 202 P.3d at 1265, the plaintiff in the

instant case was Kaleikini -- a single, private individual.11

Kaleikini was solely responsible for challenging the City and

State’s erroneous application of HRS chapter 6E, and clarifying

11
Accordingly, the State’s argument that other private parties may
have been “willing to pay market rates (indeed above market rates) to bring
the suit if plaintiff had not done so[,]” is unpersuasive.

-21-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

the City and State’s responsibilities under the law. See

Superferry II, 120 Hawai#i at 220-21, 202 P.3d at 1265-66.

The City and State argue that the instant case is

similar to Waiâhole II and Maui Tomorrow because SHPD did not

wholly abandon its duties under the law, but rather recognized

the necessity of an AIS and erroneously believed the study could

be delayed. However, it is apparent from this court’s opinion

that the City and State acted “[i]n contravention of [their]

responsibilities under the laws of this state,” see Superferry

II, 120 Hawai#i at 221, 202 P.3d at 1266, in concurring in the

rail project and proceeding with construction prior to the

completion of an AIS for all four phases of the project,

Kaleikini, 120 Hawai#i at 57, 283 P.3d at 64 (“In sum, the SHPD

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.”).

Moreover, although the OIBC agreed with Kaleikini that

the phased approach was impermissible, id. at 62-64, 283 P.3d at

69-71, the OIBC did not bring suit to enforce the provisions of

HRS chapter 6E and took no position with regard to the City’s

motion for summary judgment, see id. at 65, 283 P.3d at 72.

-22-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Thus, private enforcement by Kaleikini was necessary to ensure

the City and State complied with HRS chapter 6E and its

implementing rules.

Accordingly, the second prong of the private attorney

general doctrine was satisfied in this case.

3. The number of people standing to benefit from the
decision

Kaleikini asserts that “[t]he public at large benefits

from a decision that ensures the integrity of the historic

preservation review process.” The City concedes that “the public

generally benefits from this decision and the third prong may

arguably be satisfied.” The State argues that “the number of

persons benefitted [sic] is indeterminate” because “there is no

evidence that any significant number of persons are concerned

about whether an AIS may be completed in phases.”

In Superferry II, this court concluded that the third

prong was satisfied where “this court’s opinion . . . provided a

public benefit, because it is generally applicable law that

established procedural standing in environmental law and

clarified the need to address secondary impacts in environmental

review pursuant to HRS chapter 343 and will benefit large numbers

of people over long periods of time.” 120 Hawai#i at 221, 202

P.3d at 1266 (internal quotation marks omitted). In Waiâhole II,

this court concluded that “all of the citizens of the state,

present and future, stood to benefit from the decision.” 96

-23-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Hawai#i at 31, 25 P.3d at 806.

In the instant case, this court’s opinion established

“generally applicable law” regarding standing to enforce historic

preservation laws. See Superferry II, 120 Hawai#i at 221, 202

P.3d at 1266. In addition, this court’s opinion ensured that

historic preservation laws will be enforced as written. The

plain language of those laws supports a conclusion that the

decision in this case benefits all citizens of the State:
The Constitution of the State of Hawaii recognizes the
value of conserving and developing the historic and
cultural property within the State for the public
good. . . . The legislature further declares that it
is in the public interest to engage in a comprehensive
program of historic preservation at all levels of
government to promote the use and conservation of such
property . . . .

HRS § 6E-1 (2009) (emphasis added).

Accordingly, the third prong of the private attorney

general doctrine was satisfied in this case.

In sum, all three prongs of the test for the private

attorney general doctrine have been satisfied. Accordingly, we

award Kaleikini reasonable attorney’s fees pursuant to the

private attorney general doctrine.

D. Kaleikini’s request for attorney’s fees against the State is
barred by sovereign immunity

This court has noted that:
The doctrine of sovereign immunity refers to the
general rule, incorporated in the Eleventh Amendment
to the United States Constitution, that a state cannot
be sued in federal court without its consent or an
express waiver of its immunity. The doctrine of
sovereign immunity, as it has developed in Hawai#i,
also precludes such suits in state courts.

-24-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

State ex rel. Anzai v. Honolulu, 99 Hawai#i 508, 515, 57 P.3d

433, 440 (2002) (citations and footnote omitted).

Pursuant to the doctrine of sovereign immunity, “the

sovereign State is immune from suit for money damages, except

where there has been a clear relinquishment of immunity and the

State has consented to be sued.” Bush v. Watson, 81 Hawai#i 474,

481, 918 P.2d 1130, 1137 (1996) (citations and internal quotation

marks omitted). This court has recognized that “an award of

costs and fees to a prevailing party is inherently in the nature

of a damage award.” Superferry II, 120 Hawai#i at 226, 202 P.3d

at 1271 (quotation marks omitted) (quoting Fought, 87 Hawai#i at

51, 951 P.2d at 501). Accordingly, to properly award attorney’s

fees and costs against the State, “there must be ‘a clear

relinquishment’ of the State’s immunity[.]” Id. (quoting Bush,

81 Hawai#i at 481, 918 P.2d at 1137). For the reasons set forth

below, the State has not waived its sovereign immunity for an

award of attorney’s fees and costs in the circumstances of this

case.

This court has noted that the State has waived immunity

to suit only to the extent as specified in HRS chapters 661 and

662.12 Taylor-Rice v. State, 105 Hawai#i 104, 110, 94 P.3d 659,

665 (2004) (citations omitted). HRS § 661-1(1) “contains a

limited waiver of sovereign immunity for claims against the State

12
HRS § 662-2 (1993) waives the State’s immunity to suit for
liability for the torts of its employees and is not applicable here.

-25-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

of Hawai#i that are founded upon a statute[.]”13 Garner v. State,

Dep’t of Educ., 122 Hawai#i 150, 160, 223 P.3d 215, 225 (App.

2009). In determining the extent of the State’s waiver of

sovereign immunity, this court relies on the following principles

derived from federal law:
(1) a waiver of the Government’s sovereign immunity
will be strictly construed, in terms of its scope, in
favor of the sovereign; (2) a waiver of sovereign
immunity must be unequivocally expressed in statutory
text; (3) a statute’s legislative history cannot
supply a waiver that does not appear clearly in any
statutory text; (4) it is not a court’s right to
extend the waiver of sovereign immunity more broadly
than has been directed by the [the legislature]; and
(5) sovereign immunity is not to be waived by policy
arguments[.]

Taylor-Rice, 105 Hawai#i at 110, 94 P.3d at 665 (citations,

internal quotation marks, and brackets omitted).

In the instant case, Kaleikini argues that the State

waived its sovereign immunity pursuant to HRS § 6E-13(b) and

13
HRS § 661-1 (1993) provides, in pertinent part:

The several circuit courts of the State and, except as
otherwise provided by statute or rule, the several
state district courts shall, subject to appeal as
provided by law, have original jurisdiction to hear
and determine the following matters, and, unless
otherwise provided by law, shall determine all
questions of fact involved without the intervention of
a jury.

(1) All claims against the State founded upon
any statute of the State; or upon any regulation
of an executive department; or upon any
contract, expressed or implied, with the State,
and all claims which may be referred to any such
court by the legislature; provided that no
action shall be maintained, nor shall any
process issue against the State, based on any
contract or any act of any state officer which
the officer is not authorized to make or do by
the laws of the State, nor upon any other cause
of action than as herein set forth.

(Emphasis added).

-26-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

article XI, section 9 of the Hawai#i Constitution. For the

reasons set forth below, neither HRS § 6E-13(b) nor article XI,

section 9 waives the State’s sovereign immunity.

1. HRS § 6E-13(b) does not waive the State’s sovereign
immunity

Kaleikini relies primarily on Superferry II in arguing

that the State waived its immunity for fees pursuant to HRS § 6E-

13(b). There, this court concluded that the State waived its

sovereign immunity pursuant to HRS § 343-7, because that statute

authorizes judicial review of specified agency decisions. 120

Hawai#i at 226-28, 202 P.3d at 1271-73. Although HRS § 343-7

does not expressly waive the State’s immunity for attorney’s fees

resulting from such judicial review, this court nonetheless

concluded that the State’s liability for fees was “to be judged

under the same principles as those governing the liability of

private parties.” Id. at 229, 202 P.3d at 1274. Accordingly,

fees could be awarded against the State based on the private

attorney general doctrine. Id. at 230, 202 P.3d at 1275.

HRS § 6E-13(b) is distinguishable from HRS § 343-7, and

a waiver of the State’s sovereign immunity cannot similarly be

implied from HRS § 6E-13(b). This is because HRS § 6E-13(b)

(2009) allows suit to be brought only for a restraining order or

injunctive relief:
Any person may maintain an action in the trial court
having jurisdiction where the alleged violation
occurred or is likely to occur for restraining orders
or injunctive relief against the State, its political
subdivisions, or any person upon a showing of

-27-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

irreparable injury, for the protection of an historic
property or a burial site and the public trust therein
from unauthorized or improper demolition, alteration,
or transfer of the property or burial site.

(Emphasis added).

It is well settled that a provision allowing for

declaratory or injunctive relief is not a waiver of the State’s

sovereign immunity, but rather an exception to the sovereign

immunity doctrine for which no waiver is necessary. Superferry

II, 120 Hawai#i at 229 n.30, 202 P.3d at 1274 n.30 (“Where a

party seeks only injunctive relief, the ability to sue the state

does not stem from a waiver of sovereign immunity, but from the

fact that sovereign immunity does not bar the suit in the first

place.”). Indeed, Superferry II expressly recognized the

distinction between a claim brought pursuant to HRS § 343-7 and

one seeking only injunctive relief. Id. (noting that the case

relied on by the dissent in Superferry II, Taomae v. Lingle, 110

Hawai#i 327, 132 P.3d 1238 (2006), was distinguishable because it

involved a suit for injunctive relief and therefore involved “no

statutory waiver of sovereign immunity for the underlying

action”).

Accordingly, HRS § 6E-13(b) does not contain a waiver

of the State’s sovereign immunity.

2. Article XI, section 9 of the Hawai#i Constitution does
not waive the State’s sovereign immunity

Kaleikini relies primarily on Ala Loop Homeowners in

arguing that the State waived its immunity to fees pursuant to

-28-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

article XI, section 9 of the Hawai#i Constitution. There, this

court concluded that article XI, section 9 contained an implied

private right of action to enforce the provisions of HRS chapter

205 and other “laws relating to environmental quality.” 123

Hawai#i at 409-17, 235 P.3d at 1121-29. Accordingly, Ala Loop

Homeowners was permitted to assert its claims. Id. at 422, 235

P.3d at 1134. However, this court subsequently denied Ala Loop

Homeowners’ request for attorney’s fees and costs on the ground

that there had been no “clear relinquishment” of the State’s

sovereign immunity. Cnty. of Hawai#i v. Ala Loop Homeowners, No.

27707 (Haw. Mar. 21, 2011) (Order).

There are several reasons why article XI, section 9

does not waive the State’s sovereign immunity in this case.

First, the Hawai#i Constitution does not waive the State’s

sovereign immunity pursuant to HRS § 661-1 because claims based

on the constitution are not “founded upon any statute of the

State[.]” Kaho#ohanohano v. State, 114 Hawai#i 302, 338, 162 P.3d

696, 732 (2007). Second, it is not apparent that article XI,

section 9 applies to Kaleikini’s claims, as it pertains to “laws

relating to environmental quality, including control of pollution

and conservation, protection and enhancement of natural

resources.” Haw. Const. art. XI, § 9. Finally, nothing in the

plain language of article XI, section 9 clearly relinquishes the

State’s sovereign immunity with respect to attorney’s fees.

Article XI, section 9 provides:

-29-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Each person has the right to a clean and healthful
environment, as defined by laws relating to
environmental quality, including control of pollution
and conservation, protection and enhancement of
natural resources. Any person may enforce this right
against any party, public or private, through
appropriate legal proceedings, subject to reasonable
limitations and regulation as provided by law.

This provision must be strictly construed. See Taylor-

Rice, 105 Hawai#i at 110, 94 P.3d at 665. Nothing in article XI,

section 9 expressly waives the State’s immunity for attorney’s

fees.

In sum, there has been no clear relinquishment of the

State’s sovereign immunity, and thus the State’s immunity bars

Kaleikini’s request for fees based on the private attorney

general doctrine.14

E. Although the fees requested by Kaleikini are generally
reasonable, we deny some of the hours requested and reduce
the attorneys’ requested hourly rates

Kaleikini requests a total of $54,995.00 in fees in

relation to her appeal. Specifically, Kaleikini requests

$48,440.00 for 138 hours of work performed by Frankel, and

$6,555.00 for 34.5 hours of work performed by Obrey. This court

employs the “lodestar” method in determining a reasonable

attorney’s fee. DFS Group L.P. v. Paiea Props., 110 Hawai#i 217,

222, 131 P.3d 500, 505 (2006). Under the lodestar method, the

court multiplies the number of hours reasonably expended by a

14
The State also has not waived its immunity for costs. HRS § 607-
24 waives the State’s immunity for costs “[i]n all cases in which a final
judgment or decree is obtained against the State[.]” This provision is to be
strictly construed. See Taylor-Rice, 105 Hawai#i at 110, 94 P.3d at 665.
Because Kaleikini has not yet obtained a final judgment or decree against the
State, the State’s immunity bars her request for costs.

-30-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

reasonable hourly rate. Id.

The City argues that the hours billed by Kaleikini’s

attorneys are not reasonable because she should not recover fees

for (1) her unsuccessful claims; (2) work that was duplicative,

clerical, or insufficiently documented; and (3) amounts which

otherwise are not recoverable due to the State’s sovereign

immunity. Additionally, the City argues that the requested

hourly rates are not reasonable.

For the reasons set forth below, (1) Kaleikini can

recover fees for work attributable to all of her claims pursuant

to Schefke v. Reliable Collection Agency, Ltd., 96 Hawai#i 408,

444, 32 P.3d 52, 88 (2001); (2) the City has not specifically

challenged any of the charges as duplicative, clerical, or

insufficiently documented; (3) the City is not liable for fees

that are directly attributable to other parties; and (4) a lower

hourly rate than that requested by Kaleikini’s attorneys is

reasonable.

1. Kaleikini can recover fees for work attributable to
Counts 5 and 6

The City and State argue that Kaleikini should not

recover all of her fees because she did not prevail on two of her

claims, i.e., her HRS chapter 343 claim (Count 5) and her HRS

chapter 205A claim (Count 6). The City and State note that

Kaleikini’s fee request does not ascribe her fees to particular

claims, and argue that Kaleikini should have allocated the fees

-31-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

to discrete claims so that this court could discount fees

attributable to unsuccessful claims. Because Kaleikini did not

allocate her fees to discrete claims, the State requests that

Kaleikini’s fees be reduced by 50%. The City requests that the

fees be reduced by two-thirds because Kaleikini “only prevailed

on one out of three statutory grounds[.]”

In Schefke, this court articulated the following test,

derived from Hensley v. Eskerhart, 461 U.S. 424 (1983), for

determining “whether a partially prevailing plaintiff may recover

an attorney’s fee for legal services on unsuccessful claims”:
the trial court must determine (1) whether or not
unsuccessful claims are related to successful claims,
and (2) whether or not the plaintiff achieved a level
of success that makes the hours reasonably expended a
satisfactory basis for making a fee award.
Unsuccessful claims are deemed unrelated if they are
distinctly different claims for relief that are based
on different facts and legal theories. Thus, even
where the claims are brought against the same
defendants, counsel’s work on one claim may be
unrelated to his or her work on another claim, work on
such an unsuccessful claim cannot be deemed to have
been expended in pursuit of the ultimate result
achieved, and the hours spent on the unsuccessful
claim should be excluded in considering the amount of
a reasonable fee.
On the other hand, if the plaintiff’s claims for
relief involve a common core of facts or are based on
related legal theories and much of counsel’s time is
devoted generally to the litigation as a whole, making
it difficult to divide the hours expended on a
claim-by-claim basis, such a lawsuit cannot be viewed
as a series of discrete claims. In that situation, a
plaintiff who has won substantial relief should not
have his or her attorney’s fee reduced simply because
the trial court did not adopt each contention raised.
As to the required level of success, where a
plaintiff has obtained excellent results, his or her
attorney should recover a fully compensatory fee
because litigants in good faith may raise alternative
legal grounds for a desired outcome, and the court’s
rejection of or failure to reach certain grounds is
not a sufficient reason for reducing a fee. If, on
the other hand, a plaintiff has achieved only partial
or limited success, the product of hours reasonably
expended on the litigation as a whole times a

-32-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

reasonable hourly rate may be an excessive amount even
where the plaintiff’s claims were interrelated,
nonfrivolous, and raised in good faith.

Schefke, 96 Hawai#i at 444, 32 P.3d at 88 (citations, internal

quotation marks, brackets, ellipses, and footnote omitted).

Kaleikini’s case would appear to be precisely the type

of case envisioned by the Schefke court as allowing for an award

of fees attributable to unsuccessful claims. First, Kaleikini’s

unsuccessful claims were related to her successful claims. See

id. All six claims involved a common core of facts, i.e., the

City and State’s decision to proceed with the rail project absent

a completed AIS. Kaleikini, 128 Hawai#i at 60-61, 283 P.3d at

67-68. In addition, although the claims were based on different

statutory provisions, they all were based on a related legal

theory, i.e., that a completed AIS was required prior to any

decision making on the project. Id. Moreover, this would appear

to be a case in which “much of counsel’s time is devoted

generally to the litigation as a whole[.]” Schefke, 96 Hawai#i

at 444, 32 P.3d at 88. For example, the argument section of

Kaleikini’s opening brief was approximately 23 pages long. The

first four pages of argument provided an overview of laws

applicable to all six of Kaleikini’s claims. Approximately 13

pages were dedicated to her successful claims. Approximately six

pages were dedicated to her unsuccessful claims. Although the

arguments concerning her unsuccessful claims cited different

statutory provisions and case law, the facts and legal principles

-33-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

relied on were nearly identical to those cited in relation to her

successful claims, including the importance of native Hawaiian

burials and the potential for negative consequences if an AIS is

not completed early in the planning process.

Second, Kaleikini “achieved a level of success that

makes the hours reasonably expended a satisfactory basis for

making a fee award.” Id. (brackets omitted). In this regard,

Kaleikini’s case is nearly indistinguishable from Hensley, which

was cited with approval in Schefke. 96 Hawai#i at 444 n.78, 32

P.3d at 88 n.78. In Hensley, the plaintiffs raised six

constitutional challenges, and the trial court found

constitutional violations in five of those areas. 461 U.S. at

427-28. The Court stated:
In this case, for example, the District Court’s award
of fees based on 2,557 hours worked may have been
reasonable in light of the substantial relief
obtained. But had [the plaintiffs] prevailed on only
one of their six general claims, . . . a fee award
based on the claimed hours clearly would have been
excessive.

Id. at 436 (internal citation omitted).

Here, Kaleikini obtained relief on four of her six

claims, and on the primary issue raised in her appeal. In light

of this substantial relief, and the relationship between her

successful and unsuccessful claims, she may recover fees

attributable to her unsuccessful claims.

-34-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

2. The City has not specified which billing entries it
views as duplicative, clerical, or insufficiently
documented

The City asserts that some of Kaleikini’s fees are

duplicative, associated with clerical tasks, and insufficiently

documented. The City does not specify which charges it is

challenging.

This court has declined to discount fees where the

opponent fails to argue that hours spent on any particular task

are unreasonable. Cnty. of Hawai#i v. C&J Coupe Family Ltd.

P’ship, 120 Hawai#i 400, 407, 208 P.3d 713, 720 (2009) (“The

County does not argues that . . . the number of hours expended on

any particular task is unreasonable. . . . [A]ttorneys’ fees

must be awarded . . . for the number of hours requested.”); see

also Rapozo v. Better Hearing of Haw., LLC, 120 Hawai#i 257, 265,

204 P.3d 476, 484 (2009) (“Respondent does not challenge any item

on this list or otherwise object to the reasonableness of the

requested fees. Consequently, Petitioner’s request for $8,658.00

in attorney fee is granted.”). Moreover, a review of Kaleikini’s

request does not indicate that any of the requested fees are

duplicative, clerical, or insufficiently documented.

Accordingly, the City’s argument is without merit.

3. Some of Kaleikini’s requested fees are attributable
only to the State, and are not recoverable against the
City

The City argues that Kaleikini should not be permitted

to recover from the City “amounts that would have been

-35-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

attributable to [the State], but for which [Kaleikini] cannot

recover due to the State’s sovereign immunity.” Accordingly, the

City argues, “if sovereign immunity bars any recovery against

[the State], any award against [the City] should be reduced

accordingly.” The City cites no authority in support of this

argument. Kaleikini argues that the City and State worked “hand-

in-hand” on the rail project, and accordingly that all of her

fees are recoverable against the City pursuant to Superferry II.

Superferry II is not directly on point. There, this

court considered whether the private attorney general doctrine

could serve as a basis for recovery of attorney’s fees against a

private party, Hawai#i Superferry, Inc. (Superferry), and

concluded there was “no reason not to apply the private attorney

general doctrine to a private defendant.” 120 Hawai#i at 224-25,

202 P.3d at 1269-70. In so doing, this court noted:
[I]n this case Superferry worked hand-in-hand with DOT
throughout the planning and implementation of the
Superferry project and throughout this litigation, in
promoting its own private business interests. Under
these facts, we see no unfairness in requiring
Superferry, jointly with DOT, to pay Sierra Club’s
attorney’s fees awarded by the circuit court.

Id. at 225, 202 P.3d at 1270.

Superferry II indicates that, had an award against the

State not been barred by sovereign immunity, the City would have

been jointly and severally liable for all of Kaleikini’s fees.

Accordingly, there is some basis for allowing Kaleikini to

recover all of her fees against the City. At the same time,

-36-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Superferry II is not directly on point because it did not resolve

the question at issue here, i.e., whether a defendant may be held

liable for the full award of attorney’s fees, where an award

against a co-defendant is barred by sovereign immunity.

In the instant case, we conclude that it is reasonable

for Kaleikini to recover against the City for all of the work

performed, except for work that is clearly identifiable as being

directed at another party, such as Kaleikini’s replies to the

State and FACE/PRP. Allowing Kaleikini to recover against the

City for work that was directed at all parties (such as the

opening brief and transfer application) is reasonable in light of

the City having taken a leading role in the appeal and in the

trial court. For example, the City’s answering brief was 35

pages long and addressed each of the Counts in Kaleikini’s

complaint, including Count 5, which ran only against the State.

In contrast, the State’s answering brief was 15 pages long and

addressed only Counts 1 through 4.

Kaleikini’s billing records clearly indicate that 18

hours of Frankel’s time and 2.8 hours of Obrey’s time cannot be

fairly attributed to addressing the City:

Attorney Date Activity Hours
Frankel 1/4/12 Draft reply to State Answering 3.2
Brief
Frankel 1/5/12 Draft reply to State Answering 4.5
Brief
Frankel 1/10/12 Draft reply to State 0.8
Frankel 9/5/12 Memo in Opp to Amicus 3.3

-37-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Frankel 9/12/12 Opp to Amicus Recon Brief 6.2
Obrey 1/9/12 Review/Revise Reply to State 0.7
Obrey 1/11/12 Revise Reply to State 0.3
Obrey 9/5/12 Review FACE/PRP motion for leave to 0.3
file amicus brief
Obrey 9/5/12 Draft memo in opp to FACE/PRP 1.0
motion for leave to file amicus
brief
Obrey 9/10/12 Review amicus brief to determine if 0.5
meheula complied with court’s
order[.]

Based on the foregoing, we grant Kaleikini’s request

for fees for 120.4 hours of work performed by Frankel (138.4

requested hours minus 18 hours) and 31.7 hours of work performed

by Obrey (34.5 requested hours minus 2.8 hours).

4. The requested hourly rate is not reasonable

Kaleikini requests that attorney Frankel be awarded

fees at a rate of $350.00 per hour, and that attorney Obrey be

awarded fees at a rate of $190.00 per hour. Both the City and

Kaleikini agree that a reasonable attorney’s fee should be

calculated according to prevailing market rates in the relevant

community. (Citing Blum v. Stenson, 465 U.S. 886, 895 (1984)).

Kaleikini asserts that her requested rates are at or

below prevailing market rates in the community. Kaleikini

submits two declarations in support of this assertion. First,

Kaleikini attached a declaration from Matthew Adams, who declared

that he is a California attorney who represents the plaintiffs in

a federal lawsuit relating to the rail project,

Honolulutraffic.com, et al. v. Federal Transit Administration, et

-38-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

al., Civ. No. 11-00307 AWT. He declared that his hourly rate in

that case was $570.00, and that his co-counsel’s rate was $800.00

per hour. Additionally, he declared that the federal case

involved issues similar to those in the instant case. Kaleikini

also attached a declaration of James J. Bickerton, who declared

that the rates requested by Kaleikini’s attorneys were “at or

below the prevailing market hourly rate for professionals of

similar experience, skill and competence.”

The City argues that Kaleikini’s requested rates are

not reasonable. The City does not suggest an alternative rate

that would be reasonable, but points to cases in both state and

federal courts in Hawai#i in which attorneys were compensated at

lower rates than those requested here. In response, Kaleikini

cites to cases in both state and federal courts in which

attorneys were compensated at the same or higher rates as those

requested here.

The most recent state case cited by the parties that

addresses hourly rates is C&J Coupe. There, the requested hourly

rate was not challenged by the opposing party, and this court

determined that the rates “appear[ed] to be reasonable[.]” 120

Hawai#i at 407, 208 P.3d at 720. The rates were as follows:

Kenneth R. Kupchak $335-350
Robert H. Thomas $300-325
Mark M. Murakami $220-230
Robert D. Harris $190
Christie-Anne H. Kudo-Chock $145-150

-39-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Cherise Agua-Andrews $145
Eugenie-Mae Kincaid $130

Id.15

In a recent unpublished federal district court order in

Olson v. Lui, No. 10-00691 ACK-RLP, 2012 WL 3686682 (D. Haw. Aug.

27, 2012), the court awarded attorney’s fees at the following

rates:

Paul Alston $450
Pamela W. Bunn $270
Shellie Park-Hoapili $200
Noreen M. Kanada $100
Gail Pang $50

Id. at *2-5.

The order indicated that Alston had more than 40 years

of experience, Bunn had 15, and Park-Hoapili had almost seven.16

Id. at *3-4.

Here, Frankel was admitted to practice in 1992 (20

years prior to the 2012 decision in Kaleikini), and Obrey in 2009

(3 years). Using the foregoing rates as a guide, we conclude

that $300.00 per hour is a reasonable hourly rate for Frankel,

and $160.00 is a reasonable hourly rate for Obrey. These rates

15
Although the opinion did not list the years of experience for each
attorney, a review of the Hawai#i State Bar Association’s 2009-2010 Annual
Directory indicates that Kupchak was admitted to practice in 1971 (38 years
prior to the 2009 decision in C&J Coupe), Thomas in 1987 (22 years), Murakami
in 1999 (10 years), Harris in 2002 (7 years), and Kudo-Chock in 2007 (2
years). Agua-Andrews and Kincaid are not listed in the Directory.
16
It appears that Kanada and Pang were paralegals. Olson, 2012 WL
3686682 at *5.

-40-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

are well within the range of associate and partner rates listed

in the Pacific Business News 2012 Book of Lists, which was

attached to Kaleikini’s request as Appendix C.17

Based on the foregoing, we grant Kaleikini’s request

for fees in the amount of $36,120.00 for work performed by

Frankel (120.4 hours x $300.00 per hour), and $5,072.00 for work

performed by Obrey (31.7 hours x $160.00 per hour), for a total

award of $41,192.00.

F. Kaleikini is not entitled to an enhancement of the lodestar
amount

Kaleikini asks that this court enhance her attorney’s

fee award by a multiplier of two, based on this court’s opinion

in Schefke. The City argues that an enhancement is not available

under Schefke, nor is it supported by the policies underlying

Schefke. The City also argues that an enhancement by a

multiplier of two would be unreasonable. Kaleikini responds that

an enhancement is supported by the reasoning in Schefke, and that

Schefke expressly leaves the door open for an enhanced award for

non-profit public interest law firms. For the reasons set forth

below, Kaleikini’s argument is without merit.

In Schefke, the trial court awarded fees based on the

lodestar method, but denied the plaintiff’s request for a

multiplier. 96 Hawai#i at 419, 32 P.3d at 63. On appeal, this

17
The list provides a range of partner billing rates from $150.00 to
$595.00 at the top 50 ranked firms. The list provides a range of associate
billing rates from $120.00 to $300.00 at the same firms.

-41-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

court vacated the fee award on other grounds, and also addressed

the enhancement issue. Id. at 445, 32 P.3d 89. After reviewing

conflicting federal case law concerning enhancements, id. at

445-51, 32 P.3d at 89-95, this court held that “where a court

awards attorney’s fees pursuant to fee-shifting statutes in cases

involving contingency fee arrangements,” the contingent fee

arrangement does not place a ceiling on the amount of fees

recoverable, id. at 450-51, 32 P.3d at 94-95. Thus, “should a

fee agreement provide less than a reasonable fee, the defendant

should nevertheless be required to pay the higher amount.” Id.

at 451, 32 P.3d at 95 (brackets and ellipses omitted) (quoting

Blanchard v. Bergeron, 489 U.S. 87, 93 (1989). This court

continued:
For example, if a nonprofit legal service organization
represents a plaintiff and agrees to receive no
compensation from the plaintiff, that fact will not
bar the plaintiff from obtaining a reasonable fee
award when he or she prevails. Thus, in this case,
the fact that doubling Plaintiff’s lodestar fees would
result in more fees than Plaintiff agreed to pay his
attorney should not in itself prevent Plaintiff from
receiving that amount. However, if the doubled amount
exceeds a “reasonable” fee, Plaintiff is not entitled
to the exceeded amount.

Id. at 451, 32 P.3d at 95.

In sum, this court concluded that “our courts should be

given discretion to enhance the lodestar fee when an attorney has

been retained on a contingency fees basis.” Id. at 452, 32 P.3d

at 96.

By its clear terms, the holding in Schefke does not

apply in the instant case. First, Schefke was clearly limited to

-42-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

cases involving fee-shifting statutes. Id. at 454, 32 P.3d at 98

(“We note that this holding applies only to statutes with fee-

shifting provisions enacted to encourage the enforcement of law

through lawsuits filed by private persons.” (internal quotation

marks, ellipses, and citation omitted)). Here, however,

Kaleikini seeks fees pursuant to the private attorney general

doctrine, rather than a fee-shifting statute.

Second, Schefke is clearly limited to cases taken on a

contingency basis:
A court must first determine whether a case was taken
on a contingency basis because if a client has
contracted to pay the lodestar fee, regardless of the
outcome of the case, and has paid the attorney on a
continuing basis, then the attorney has clearly
avoided the risk of nonpayment and enhancement is not
appropriate.

Id. at 454, 32 P.3d at 98 (internal quotation marks, ellipses and

brackets omitted).

Here, NHLC did not take Kaleikini’s case on a

contingency basis. Although Kaleikini asserts that, “[i]n this

case, the payment of any fees was purely contingent on prevailing

on the merits[,]” (emphasis added), she acknowledges that there

was no contingent fee arrangement by which she would pay NHLC in

the event she prevailed.

Nevertheless, Kaleikini points to the following

sentence from Schefke as indicating that her fee request was

intended to be covered by the Schefke rule: “For example, if a

nonprofit legal service organization represents a plaintiff and

-43-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

agrees to receive no compensation from the plaintiff, that fact

will not bar the plaintiff from obtaining a reasonable fee award

when he or she prevails.” Id. at 451, 32 P.3d at 95. However,

read in context, it is not apparent that this sentence was

intended to extend the Schefke enhancement rule to circumstances

in which a legal service organization represents a client without

the expectation of compensation. Rather, it appears that this

court viewed such a circumstance as analogous to an enhancement,

in that the legal service provider could receive more fees from

the defendant than what the plaintiff had originally contracted

to pay.18 Moreover, this single statement is not sufficient to

override the repeated statements by the Schefke court that the

holding there was specific to contingency fee arrangements. See,

e.g., id. at 450-51, 32 P.3d at 94-95 (allowing enhancements

“where a court awards attorney’s fees pursuant to fee-shifting

statutes in cases involving contingency fee arrangements”); id.

at 454, 32 P.3d at 98 (noting that one of three factors a court

must consider in determining whether to award an enhancement is

“whether a case was taken on a contingent basis” (internal

quotation marks and citation omitted)).

Moreover, the policies underlying Schefke do not

18
The enhancement is designed to prevent the contingent fee from
being a “ceiling” on the attorney’s compensation. See id. at 450, 32 P.3d at
94. Put another way, under a contingency arrangement, an attorney may
contract to receive less than a reasonable fee -- and less than the lodestar
amount -- from his or her client. However, the enhancement allows the
attorney to receive a reasonable fee award from the defendant, even if that
fee exceeds what the client would have paid the attorney under the contingency
arrangement.

-44-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

support an extension of the enhancement rule to the circumstances

of this case. The purpose of an enhancement in contingency fee

cases is to ensure that the attorney is awarded a reasonable fee.

See id. at 451, 32 P.3d at 95. “Contingency enhancements merely

compensate lawyers at market rates for services lawyers provide

to clients who win.” Id. at 453, 32 P.3d at 97 (quoting Charles

Silver, Incoherence and Irrationality in the Law of Attorneys’

Fees, 12 Rev. Litig. 301, 332 (1993)). Although Schefke clearly

states that the fee may be enhanced beyond the lodestar, “[t]here

is a ‘strong presumption’ that the lodestar represents the

‘reasonable’ fee.” Id. at 443 n.72, 32 P.3d at 87 n.72

(quotation marks and brackets omitted); see also Perdue v. Kenny

A., 559 U.S. 542, --, 130 S.Ct. 1662, 1673 (2010) (“[T]here is a

‘strong presumption’ that the lodestar figure is reasonable, but

that presumption may be overcome in those rare circumstances in

which the lodestar does not adequately take into account a factor

that may properly be considered in determining a reasonable

fee.”).

Here, Kaleikini offers no argument to rebut the

presumption that the lodestar is reasonable. The only factors

she relies on asserting that she is entitled to a multiplier of

two are (1) any award of fees in this case was contingent on

Kaleikini prevailing and seeking fees from defendants; (2) her

attorneys’ time could have been spent representing “other

deserving native Hawaiians”; and (3) this court’s decision

-45-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

involved “significant and broad issues of great public interest.”

However, these factors do not establish that the lodestar is

unreasonable, or that an enhancement is necessary to achieve a

reasonable fee.

Finally, it should be noted that Kaleikini’s requested

enhancement exceeds the multiplier that is ordinarily awarded.

Schefke, 96 Hawai#i at 455, 32 P.3d at 99. Although the

enhancement in “typical contingency cases rang[es] between twenty

and thirty-five percent of the lodestar[,]” id., Kaleikini

requests a multiplier of two, i.e., one hundred percent of the

lodestar. Such an enhancement is exceedingly rare, id. at 455-56

n.102, 32 P.3d at 99-100 n.102 (noting that a 100% enhancement

had been awarded only in civil rights cases and only three times

between 1980 and 1985), and
will be appropriate only in the rare and exceptional
case in which the risk of nonpayment has not been
mitigated at all, i.e., where the “legal” risk
constitutes an economic disincentive independent of
that created by the basic contingency in payment and
the result achieved is significant and of broad public
interest.

Id. at 456, 32 P.3d at 100 (brackets omitted) (quoting Rendine v.

Pantzer, 661 A.2d 1202, 1231 (N.J. 1995)).

Kaleikini has not presented any argument to support

such an extraordinary multiplier. Moreover, the prospect of

Kaleikini receiving any fees in this case, even is she prevailed,

was entirely speculative in light of this court’s limited case

law on the private attorney general doctrine. Thus, it does not

appear that lack of payment was an economic disincentive for her

-46-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

counsel. Additionally, although this case was significant and

the public will benefit from the decision, “the result achieved

cannot be said to be of such significant and broad interest as to

justify a multiplier of two.” See id. (internal quotation marks

and ellipses omitted).

In sum, Schefke does not apply and Kaleikini offers

insufficient argument to rebut the presumption that the lodestar

represents a reasonable fee. Accordingly, the imposition of an

enhancement in this case is unwarranted.

G. Kaleikini is entitled to her requested costs

Kaleikini asserts that she incurred $343.00 in costs

relating to her appeal, consisting of $275.00 in court costs for

the filing of the appeal and $68.00 for the cost of printing

briefs and appendices on appeal (170 pages x 4 copies at 10¢ per

page). Kaleikini asserts that these costs are authorized

pursuant to HRAP Rule 39(c) (2012), which provides, “Costs in the

appellate courts are defined as: . . . (3) the fee for filing the

appeal; [and] (4) the cost of printing or otherwise producing

necessary copies of briefs and appendices, provided that copying

costs shall not exceed 20¢ per page[.]”

The City objects to some of Kaleikini’s requested costs

relating to work in the trial court, but does not specifically

object to any of the costs Kaleikini requests in relation to her

-47-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

appeal.19 At the same time, the City argues that Kaleikini’s

“only possible recoverable cost is the $275 appellate filing

fee.” The City does not explain why Kaleikini’s $68.00 in costs

for copying briefs and appendices should be disallowed.

Recovery of the $275.00 appellate filing cost is

expressly permitted pursuant to HRAP Rule 39(c)(3), and the City

does not object to this cost item. Accordingly, we grant

Kaleikini’s request for $275.00 in appellate filing costs.

In addition, Kaleikini’s copying costs are expressly

recoverable under HRAP Rule 39(c)(4). This court has noted that

costs recoverable pursuant to HRAP Rule 39(c)(4) include “those

briefs encompassed by HRAP Rule 28, including the number of

copies required by HRAP Appendix A.” Kamalu v. ParEn, Inc., 110

Hawai#i 269, 279, 132 P.3d 378, 388 (2006). In addition, HRAP

Rule 32.1 requires parties to deliver to the appellate clerk

paper copies of the documents specified in HRAP Appendix A, which

includes four copies of opening, answering, and reply briefs.

Here, Kaleikini’s opening brief consisted of 43 pages

and the attached appendices consisted of 128 pages, for a total

of 171 pages. Accordingly, Kaleikini’s request for $68.00 in

copying costs (170 pages x 4 copies at 10¢ per page) is

reasonable, and would appear to be less than Kaleikini actually

19
The State does not provide any argument with respect to
Kaleikini’s costs.

-48-
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

expended.20 We therefore grant Kaleikini’s request for $68.00 in

copying costs.

Based on the foregoing, we grant Kaleikini’s request

for costs in the amount of $343.00.

III. CONCLUSION

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.

David Kimo Frankel and /s/ Mark E. Recktenwald
Ashley K. Obrey for
petitioner /s/ Paula A. Nakayama
William J. Wynhoff for /s/ Sabrina S. McKenna
State respondents
/s/ R. Mark Browning
Robert C. Godbey, Don S.
Kitaoka, Gary Y. Takeuchi, /s/ Fa#auuga To#oto#o
John P. Manaut and Lindsay N.
McAneeley for City respondents

William Meheula and
Keani Alapa for amicus curiae

20
Additionally, it appears that Kaleikini has not sought costs for
her reply briefs.

-49-