HAWSCT Clarifies Procedure For Requesting Mandatory Attorneys Fees Under Open Records Laws

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Robert Thomas
Robert Thomas

BY ROBERT THOMAS –  the Hawaii Supreme Court issued a unanimous opinion in Oahu Publications, Inc. v. Abercrombie, No. SCWC-13-0000127 (July 31, 2014).

We represent the prevailing petitioner in the case, so won’t be adding much of anything to the court’s words.But if you are interested in government records laws and the interplay between attorneys’ fee recovery and the Rules of Appellate Procedure, read on.


The court writes:

We consider whether the Intermediate Court of Appeals (ICA) erred in denying Oahu Publications’ request for appellate attorneys’ fees and costs.

In brief summary, Oahu Publications filed the underlying suit against The Honorable Neil Abercrombie, in his official capacity as Governor of the State of Hawaii, under the Uniform Information Practices Act (UIPA), Hawaii Revised Statutes (HRS) Chapter 92F, seeking to obtain the list of nominees considered for a vacancy on the Hawaii Supreme Court. After the parties filed cross-motions for summary judgment, the circuit court entered summary judgment in favor of Oahu Publications, ordering disclosure of the nominees’ names.

The circuit court also awarded Oahu Publications attorneys’ fees and costs pursuant to HRS § 92F-15(d) (1993).

The Governor appealed to the ICA only with regard to the circuit court’s award of attorneys’ fees and costs. After the parties had briefed the case, the ICA dismissed the appeal for lack of jurisdiction because of an error in the circuit court’s judgment. After the circuit court corrected the judgment, the Governor filed a second appeal.

In the second appeal, the parties agreed to re-submit the briefs filed in the first appeal, with updated citations to the record on appeal.

In a summary disposition order, a majority of the ICA affirmed the circuit court’s award of $69,027.06 in fees and costs to Oahu Publications, except for $564.60 of photocopying costs.

Oahu Publications then filed a request for appellate fees and costs in the ICA, which included fees accrued during both the first and second appeals.

The ICA denied Oahu Publications’ request for fees incurred during the first appeal, concluding that the request was untimely under Hawaii Rules of Appellate Procedure (HRAP) Rule 39(d)(2) (2007). The ICA granted Oahu Publications’ request with respect to the second appeal in its entirety.

In its application, Oahu Publications presents a single question:

Are attorneys’ fees incurred in an earlier phase of appellate litigation — which the ICA dismissed for lack of a final circuit court judgment, but which did not resolve the action — recoverable by the prevailing complainant under Haw. Rev. Stat. § 92F-15(d) after the ICA rules in its favor on the merits?

We hold that the ICA erred in not considering Oahu Publications’ request for fees and costs incurred during the first appeal.

Oahu Publications was not a prevailing party for purposes of HRS § 92F-15(d) until after the second appeal was decided.

Section 92F-15(d) provides that if the complainant prevails, the court shall assess reasonable attorneys’ fees and all other expenses.

Although Oahu Publications prevailed in the circuit court and ultimately prevailed in the ICA, it was not a prevailing party for purposes of HRS § 92F-15(d) when the ICA dismissed the first appeal for lack of jurisdiction. Oahu Publications prevailed in the ICA only after the second appeal was decided.

Moreover, even assuming Oahu Publications could have filed a request for fees and costs pursuant to HRS § 92F-15(d) upon dismissal of the first appeal, the ICA erred in denying Oahu Publications’ request following resolution of the second appeal.

Although HRAP Rule 39(d)(2) generally provides that “[a] request for fees and costs or necessary expenses must be filed . . . no later than 14 days” after the time for filing a motion for reconsideration has expired or such motion has been decided, it further provides that the appellate court “may” nevertheless consider such a request.

Thus, the ICA had the discretion to consider an untimely request for fees and costs. Tortorello v. Tortorello, 113 Hawaii 432, 153 P.3d 1117 (2007).

Given the express language of HRS § 92F-15(d), which provides that the court “shall assess against the agency reasonable attorney’s fees and all other expenses reasonably incurred in the litigation,” the ICA should have considered Oahu Publications’ request for fees incurred in the first appeal even if it was untimely. HRS § 92F-15(d) (emphases added).

We therefore vacate in part the ICA’s January 6, 2014, and January 24, 2014 orders, and vacate the ICA’s March 3, 2014 judgment on appeal.

Slip op. at 1-4 (footnote omitted).

Here are the cert papers and the ICA’s decisions:

Oahu Publications, Inc., dba The Honolulu Star-Advertiser v. Abercrombie, No. SCWC-13-0000127 (Haw. July 31…

– See more at: https://www.inversecondemnation.com/#sthash.clB5UywV.dpuf



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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at rht@hawaiilawyer.com He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.