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                                                                 Electronically Filed
                                                                 Supreme Court
                                                                 SCWC-30110
                                                                 28-JUN-2013
                                                                 12:50 PM



              IN THE SUPREME COURT OF THE STATE OF HAWAI           I

                           ---o0o---
_________________________________________________________________

          RICHARD NELSON III, KALIKO CHUN, JAMES AKIONA, SR.,
    SHERILYN ADAMS, KELII IOANE, JR., and CHARLES AIPIA (deceased),
                   Respondents/Plaintiffs/Appellants,

                                       vs.

HAWAIIAN HOMES COMMISSION, THE DEPARTMENT OF HAWAIIAN HOME LANDS,
    JOBIE MASAGATANI, in her official capacity as Chair of the
   Hawaiian Homes Commission, IMAIKALANI P. AIU, PERRY ARTATES,
    LEIMANA K. DAMATE, GENE ROSS DAVIS, JEREMY KAMAKANEOALOHA
          HOPKINS, MICHAEL P. KAHIKINA, IAN LEE LOY, and
        RENWICK V. I. TASSILL, in their official capacities
           as members of the Hawaiian Homes Commission,1
                 Respondents/Defendants/Appellees,

                                       and

 KALBERT K. YOUNG, in his official capacity as the State Director
               of Finance, and the STATE OF HAWAI I,
                 Petitioners/Defendants/Appellees.
_________________________________________________________________

                                  SCWC-30110

            CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (ICA NO. 30110, CIVIL NO. 07-1-1663-08)


1
      During the pendency of this motion, Jobie Masagatani succeeded Alapaki
Nahale-a as the Chair of the Hawaiian Homes Commission, and Gene Ross Davis
succeeded Henry K. Tancayo as a member of the Hawaiian Homes Commission.
Thus, pursuant to Hawai#i Rules of Appellate Procedure Rule (“HRAP”) 43(c)(1)
(2012), Masagatani and Davis have been substituted automatically for Nahale-a
and Tancayo in this case.
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                                JUNE 28, 2013

       RECKTENWALD, C.J., NAKAYAMA, MCKENNA AND POLLACK, JJ.,
     WITH ACOBA, J., CONCURRING AND DISSENTING SEPARATELY, AND
                 POLLACK, J., CONCURRING SEPARATELY

                  OPINION OF THE COURT BY MCKENNA, J.

I.   Introduction

      Following the publication of this court’s opinion in Nelson

v. Hawaiian Homes Comm’n, 127 Hawai‘i 185, 277 P.3d 279 (2012),

Respondents/Plaintiffs-Appellants Richard Nelson III, Kaliko

Chun, James Akiona, Sr., Sherilyn Adams, Kelii Ioane, Jr., and

Charles Aipia (collectively “Plaintiffs”), represented by Native

Hawaiian Legal Corporation (“NHLC”) requested attorneys’ fees and

costs2 as the prevailing party, pursuant to the private attorney

general doctrine.      Both the State of Hawai‘i and the Department

of Hawaiian Home Lands filed objections3 to Plaintiffs’ request,

arguing, inter alia, that Plaintiffs were not the prevailing

party, that Plaintiffs do not qualify for an award of fees under

the private attorney general doctrine, and that sovereign

immunity bars an award of fees in any event.            Additionally, DHHL
2
      NHLC has requested both trial and appellate attorneys’ fees and costs.
This opinion will address only appellate attorneys’ fees and costs.
“[D]ecisions about fees incurred at the trial level are more properly within
the trial court’s discretion.” S. Utsunomiya Enters., Inc. v. Moomuku Country
Club, 76 Hawai‘i 396, 402, 879 P.2d 501, 507 (1994).
3
      Prior to filing their objections, the State filed a “Motion to Determine
Plaintiffs’ Entitlement to Attorneys Fees (Including Applicability of Private
Attorney General Doctrine) before Requiring Opposition as to amount of Fees,”
and DHHL filed its joinder in the State’s Motion. Because both the State and
DHHL subsequently filed memoranda in opposition to the Plaintiffs’ request,
these initial motions are hereby denied as moot.

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objected to the request for costs as inadequately documented.

For reasons that follow, we deny Plaintiffs’ request for

appellate attorneys’ fees as barred by the State’s sovereign

immunity.      We also deny Plaintiffs’ request for appellate costs

without prejudice.

II.    Discussion

       A.   Prevailing Party

       The first step in analyzing whether Plaintiffs are entitled

to attorneys’ fees (and costs) is to determine whether they are

the “prevailing party.”        The “prevailing party” is the one who

“prevails on the disputed main issue[.]”            Food Pantry, Ltd. v.

Waikiki Business Plaza, Inc., 58 Haw. 606, 620, 575 P.2d 869, 879

(1978).      Even if the party does not prevail “to the extent of

his original contention, he will be deemed to be the successful

party for the purpose of taxing costs and attorney’s fees.”                Id.

(citation and footnote omitted).

       “The trial 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.”     MFD Partners v. Murphy, 9 Haw. App. 509, 515, 850 P.2d

713, 716 (1992).       In the circuit court, the principle issues

raised were:
             Count I: The State violated its constitutional duty to
             sufficiently fund DHHL in order to rehabilitate native
             Hawaiian beneficiaries, under the Hawai#i State

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            Constitution=s Article XII, Sections 1 and 2
            Count 2: DHHL violated the constitution and breached its
            trust obligation to beneficiaries to seek sufficient funds
            from the legislature.
            Count 3: The DHHL Defendants breached their trust
            obligation to beneficiaries by leasing DHHL lands for
            commercial purposes to raise funds.
            Count 4: The DHHL Defendants breached their obligation to
            trust beneficiaries by failing to ascertain whether trust
            lands are necessary for general homestead purposes before
            offering them for commercial lease.

The circuit court granted summary judgment in favor of the State

and DHHL on Counts 1 and 2 based on the political question

doctrine.    The parties entered into a Stipulation to Dismiss

Count 3 without prejudice and Count 4 with prejudice.             On

balance, before the trial court, the Defendants were the

prevailing parties, securing summary judgment in their favor on

the first two counts and a dismissal with prejudice on the fourth

count.

     Before the ICA, Plaintiffs prevailed on Counts I and II (or

at least succeeded in reversing summary judgment and securing a

remand), as the ICA held that the political question doctrine did

not bar the determination of what constituted sufficient sums

that (1) the State must provide to DHHL and that (2) DHHL must

request.    See Nelson v. Hawaiian Homes Comm’n, 124 Hawai#i 437,

447, 246 P.3d 369, 379 (App. 2011).

     On certiorari, however, only the State further appealed the

ICA’s decision as to Count I, and the principle issue raised was
            Does the political question doctrine bar Hawaiian Homes
            Commission Act (HHCA) beneficiaries from using Haw. Const.


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          Article XII, Section 1’s “sufficient sums” provision to
          demand more legislative funding of the Department of
          Hawaiian Home lands (DHHL), when that provision provides no
          guidance at all as to how quickly homesteads must be
          developed?

This court held that the political question doctrine did not bar

determination of what constituted “sufficient sums” for one of

four enumerated purposes under Article XII, Section 1:

administrative and operating expenses.         Nelson, 127 Hawai‘i at

188, 277 P.3d at 282.     Thus, the extent to which Plaintiffs

“prevailed” is at issue.

     This court has previously given guidance on determining

which party prevailed in a case in which the relief granted was

not solely in favor of one party.        In Food Pantry, 58 Haw. at

620, 575 P.2d at 879, which involved a lease dispute, this court

determined that the lessor was the prevailing party, even though

the lessee did receive the relief he requested.          In that case,

the trial court found that the lessor was required to consent to

a sublease under the lease, that the lessee materially breached

that provision of the lease, and that the lessor was entitled to

terminate the lease.     Id.   Even though the trial court granted

the lessee’s requested relief (that the lease not be forfeited

and that damages for the breach be paid instead), the lessor was,

“on balance,” the successful party in the case, based on the

pleadings and proof.     Id.

     In this case, although the State received the relief it

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requested on certiorari (that the political question bar the

determination of what constitutes “sufficient sums” for the

development of homestead lots), Plaintiffs are the prevailing

party, because this court affirmed the ICA’s judgment, albeit on

a narrower ground that the political question doctrine did not

bar determination of what constituted “sufficient sums” for

administrative and operating expenses only.          More importantly,

part of Plaintiffs’ claims against the State survived, in that

the circuit court’s grant of summary judgment in favor of the

state was vacated, and this case has been remanded to the circuit

court for further proceedings.

     Having established that Plaintiffs prevailed on appeal, we

next examine whether the private attorney general doctrine

entitles them to an award of attorneys’ fees.

     B.    Private Attorney General Doctrine

     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,”

including the private attorney general doctrine.           Sierra Club v.

Dep’t of Transp., 120 Hawai‘i 181, 218, 202 P.3d 1226, 1263

(2009).   In In re Water Use Permit Applications, 96 Hawai‘i 27,

29, 25 P.3d 802, 804 (2001)(“Waiahole”), this court first

recognized the private attorney general doctrine, which it


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summarized as follows:
          The doctrine is an equitable rule that allows courts in
          their discretion to award attorneys’ fees to plaintiffs who
          have “vindicated important public rights.” Courts applying
          this doctrine consider three basic factors:
                “(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, (3) the number of
                people standing to benefit from the decision.”

(citing Serrano v. Priest, 569 P.3d 1303, 1314 (Cal. 1977)).

This court, however, declined to apply the doctrine.            Id.   It

held that the plaintiffs met the first and third prongs of the

doctrine, as the underlying case “involved constitutional rights

of profound significance [i.e., the apportionment of water

rights], and all of the citizens of the state, present and

future, stood to benefit from the decision.”          96 Hawai‘i at 31,

25 P.3d at 806.    But it also held that the plaintiffs had not met

the second prong because they were merely one of several parties

who “challenged the decision of a tribunal (the Commission on

Water Resource Management or “CWRM”) in an adversarial proceeding

not contesting any action or policy of the government” and in

which the government had not “either completely abandoned, or

actively opposed, the plaintiffs’ cause.”         96 Hawai‘i at 31-32,

25 P.3d at 806-07.    Although declining to award attorneys’ fees

under the private attorney general doctrine in that case, this

court did not foreclose the application of the doctrine “in any

future case. . . .”     96 Hawai‘i at 32, 25 P.3d at 807.

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       In Maui Tomorrow v. State, 110 Hawai‘i 234, 245, 131 P.3d

517, 528 (2006), this court once again declined to apply the

doctrine to award attorneys’ fees.           In that case, the plaintiffs

had succeeded in appealing a decision of the Board of Land and

Natural Resources (“BLNR”) to the circuit court, which remanded

the matter for further findings, because that agency had not

fulfilled its constitutional duty to protect customary and

traditional native Hawaiian rights.           See id.    Although this court

recognized that the plaintiffs’ agency appeal qualified as

contesting a governmental policy under the second prong of the

private attorney general doctrine, it noted that the BLNR did not

“abandon” or “actively oppose” the plaintiffs’ cause; it merely

mistakenly assumed that the CWRM was responsible for fulfilling

the constitutional duty.         Id.   Therefore, this court found that

the plaintiffs’ case had not fully met the second prong of the

private attorney general doctrine and concluded that the circuit

court did not abuse its discretion in declining to award fees.

Id.

       This court did affirm the trial court’s award of attorneys’

fees under the private attorney general doctrine in Sierra Club,

in which the plaintiffs challenged an exemption of the Superferry

project from Hawai‘i’s environmental protection statutes.               120

Hawai‘i at 230, 202 P.3d at 1275.           As to the first prong, this


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court concluded that the Sierra Club plaintiffs vindicated an

important public policy:      they “establish[ed] the principle of

procedural standing in environmental law in Hawaii and

clarif[ied] the importance of addressing the secondary impacts of

a project in the environmental review process pursuant to HRS

Chapter 343.”   120 Hawai‘i at 220, 202 P.3d at 1265.          As to the

second prong, this court concluded that the plaintiffs’ suit was

necessary because the DOT “wholly abandoned that duty [to

consider both the primary and secondary impacts of the Superferry

project on the environment] by issuing an erroneous exemption to

the Superferry.”    120 Hawai‘i at 221, 202 P.3d at 1266.          As to

the third prong, this court stated that the plaintiffs’ case

benefited society as a whole.       Id.   In short, the plaintiffs met

all three requirements entitling them to an award of attorneys’

fees under the private attorney general doctrine.

     In the instant case, Plaintiffs arguably met all three

prongs, entitling them to attorneys’ fees under the private

attorney general doctrine.      First, the “strength or societal

importance of the public policy” they vindicated by their

litigation was that the State now must fund DHHL’s administrative

and operating expenses.     As a result, DHHL will be able to shift

the funds it was spending on administrative and operating

expenses towards fulfilling its trust duties to its


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beneficiaries.    In general, this court has stated, “It is

undisputed that the rights of native Hawaiians are a matter of

great public concern in Hawaii.”         Pele Defense Fund v. Paty, 73

Haw. 578, 614, 837 P.3d 1247, 1268 (1992).

     Second, it was necessary for Plaintiffs to resort to private

enforcement, as the State made it clear for years that it did not

believe it had a duty to sufficiently fund DHHL, and DHHL for

years had not requested sufficient sums from the legislature.

The State and DHHL had clearly abandoned or actively opposed

Plaintiffs’ request that the State sufficiently fund DHHL.

     Third, the number of people standing to benefit from the

Nelson decision is substantial.       At the very least, a shift in

funding for administrative and operating expenses provides a

benefit to the Hawaiian Home Lands trust, impacting at least the

tens of thousands of known beneficiaries on the waiting list, and

ultimately benefitting the State as a whole, because stewardship

of Hawaiian Home Lands was an obligation taken on by the State as

a condition for admission into the union.         See Admission Act,

Pub. L. No. 86-3, 73 Stat. 4 (1959) § 4.         In short, Plaintiffs

have arguably established an entitlement to attorneys’ fees under

the private attorney general doctrine.

     However, the analysis does not end with the establishment of

a right to fees under the doctrine.        In analyzing the Sierra Club


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plaintiffs’ attorneys’ fee request under the private attorney

general doctrine, this court also noted, “Application of the

private attorney general doctrine is . . . subject to the

defenses which a defendant may have” and explored, inter alia,

the State’s defense of sovereign immunity.          Sierra Club, 120

Hawai‘i at 221, 225-29, 202 P.3d at 1266, 1270-74.            In this case,

the State and DHHL have both raised the defense of sovereign

immunity as to the requested fees.

      C.   Sovereign Immunity

      “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 . . . also precludes such suits in state courts.’”                120

Hawai‘i at 225-26, 202 P.3d at 1270-71 (citations omitted).

“It is well established that the State as sovereign is immune

from suit except as it consents to be sued.”           Figueroa v. State,

61 Haw. 369, 381, 604 P.2d 1198, 1205 (1979)(citations omitted).

      In Sierra Club, we stated
            “[A]n award of costs and fees to a prevailing party is
            inherently in the nature of a damage award.”[4] Fought, 87

4
       The Concurrence/Dissent cites Fought for the proposition that “[a]n
award of fees and costs grounded in the inherent equitable power of the court
is incidental to the underlying suit to which it is attached and thus cannot
conceptually be denominated as in the nature of a separate damages award.”
Concurrence/Dissent at II.B (emphasis in Concurrence/Dissent). Respectfully,
Fought observed the opposite: “[T]axation of costs and attorneys’ fees is

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           Hawai‘i 37, 51, 951 P.2d 487, 501 (1998). Accordingly, to
           properly award attorney’s fees and costs against [the State]
           in this case, there must be “a clear relinquishment” of the
           State’s immunity in this case. Bush [v. Watson, 81 Hawai‘i
           474, 481, 918 P.2d 1130, 1137 (1996)].

Sierra Club, 120 Hawai‘i at 226, 202 P.3d at 1271.            It is true

that sovereign immunity did not bar the Plaintiffs’ underlying

claims, which were for declaratory and injunctive relief for

violations of Article XII, Section 1, and not damages.             See

Kaho‘ohanohano v. State, 114 Hawai‘i 302, 337, 162 P.3d 696, 731

(1992)(“[S]overeign immunity will not be a bar where governmental

action is challenged as unconstitutional.”) (citing Pele Defense

Fund, 73 Haw. at 607, 837 P.2d at 1265).          However, that sovereign

immunity was no bar to the underlying claim “does not necessarily

result in a right to attorneys’ fees.”          Taomae, 110 Hawai‘i at

333, 132 P.3d at 1244.

     Plaintiffs’ arguments parallel the analysis in the Sierra

Club decision.     They argue that the waiver of sovereign immunity

for private attorney general fees in this case is statutory.

“This court has noted that the State has waived immunity to suit

only to the extent as specified in HRS chapters 6615 and 6626.”
essentially an award of damages. . . .” 87 Hawai‘i at 52, 951 P.2d at 502
(emphasis added). It would appear, then, that an award of fees under the
private attorney general doctrine is in the nature of damages; therefore,
under Sierra Club, in order to award fees under the doctrine, a waiver of
sovereign immunity must exist. See Sierra Club, 120 Hawai‘i at 226, 202 P.3d
at 1271.
5
     HRS § 661-1(1)(1993) provides, with emphasis added:
           Jurisdiction. The several circuit courts of the State and,
           except as otherwise provided by statute or rule, the several

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Taylor-Rice v. State, 105 Hawai‘i 104, 110, 94 P.3d 659, 665

(2004)(citation omitted).7       In Sierra Club, this court concluded

that HRS § 661-1 waived sovereign immunity on all claims founded

upon any statute, the statute in that case being HRS § 343-7

(1993), which authorized judicial review of a state agency’s

decisions concerning environmental assessments and environmental

impact statements.      120 Hawai‘i at 226-28, 202 P.3d at 1271-73.

This court stated, “Although the text of HRS § 343-7 does not

explicitly state that suits may be brought against the State,

interpreting the text of [the subsections authorizing judicial

review] as something other than a waiver of sovereign immunity
            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.
6
      HRS Chapter 662 (1993) is the State Tort Liability Act, which is not at
issue in this appeal.
7
      Since the passage of Act 395 in 1988, which created HRS Chapter 673,
also known as the Native Hawaiian Trust Judicial Relief Act, there are now at
least three statutory bases for the waiver of the State’s sovereign immunity:
HRS Chapters 661, 662, and 673. It appears Chapter 673 stands on equal
footing with Chapters 661 and 662. See, e.g., Mia Y. Teruya, The Native
Hawaiian Trusts Judicial Relief Act: The First Step in an Attempt to Provide
Relief, 14 U. HAW. L. REV. 889, 905 (1992)(“This express waiver of [the
State’s] sovereign immunity [found in Chapter 673] is unique. In the past,
the State has only allowed a waiver of sovereign immunity for tort and
contract actions against the state [pursuant to Chapters 662 and 661,
respectively]. No other state in the country allows itself to be sued for
breaches of its fiduciary duties.”)(footnotes omitted).

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would create an absurd result.”       120 Hawai‘i at 227, 202 P.3d at

1272.   The Sierra Club court then further held that, because the

State consented to be sued, its liability is to be “judged under

the same principles as those governing the liability of private

parties.”    120 Hawai‘i at 229, 202 P.3d at 1274 (citing Fought,

87 Haw. at 56, 951 P.2d at 506).         It concluded that the statutory

waiver of immunity found in HRS §§ 661-1(1) and 343-7, coupled

with the private attorney general doctrine, provided a basis for

the award of attorneys’ fees to the plaintiffs.          120 Hawai‘i at

229, n.30, 202 P.3d at 1274, n.30.

            1.   HRS § 661-1(1) and Chapter 632

     In this case, Plaintiffs parallel the analysis in Sierra

Club (which drew heavily upon Fought, 87 Hawai‘i 37, 951 P.2d

487) to argue that HRS § 661-1(1)’s waiver of sovereign immunity

applies, and that their claims were founded on statute,

specifically HRS Chapter 632 (1993).        For its part, the Dissent

argues that “Plaintiffs here should not have to demonstrate a

waiver of sovereign immunity specifically over attorneys’ fees,”

citing Fought and Sierra Club’s extension of Fought.

Concurrence/Dissent at II.A.      We respectfully disagree with both

the Plaintiffs and the Concurrence/Dissent because the instant

case does not implicate HRS § 661-1 or any statutory waiver of

sovereign immunity; rather, this case involves claims for

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declaratory and injunctive relief based on alleged constitutional

violations.

     Fought held that “a further waiver of sovereign immunity is

not necessary in order for HRS § 607-14 [a fee-shifting statute

for “all actions in the nature of assumpsit”] to apply to the

state and its respective agencies in matters which, by virtue of

the express waiver of sovereign immunity set forth in HRS § 661-

1, the state (or any of its agencies) has become a party.”             87

Hawai‘i at 56, 951 P.2d at 506.       Sierra Club then extended

Fought’s holding that a further waiver of sovereign immunity was

not necessary in order for the private attorney general doctrine

to apply to the state, by virtue of the express waivers of

sovereign immunity set forth in HRS §§ 661-1(1) and 343-7.

Sierra Club, 120 Hawai‘i at 229, 202 P.3d at 1274.

     However, Fought’s (and Sierra Club’s) holdings cannot be

extended to this case, because this case does not truly arise

under HRS § 661-1.    Plaintiffs argue that their case fits under

HRS § 661-1’s statutory waiver of sovereign immunity because

their claims are “founded upon any statute of the State,” with

the statute being HRS § 632-1, which authorizes declaratory and

injunctive relief.    We have already rejected this line of

reasoning, however, as follows:       “Where a party seeks only

injunctive relief, the ability to sue the state does not stem


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from a waiver of sovereign immunity, but from the fact that

sovereign immunity does not bar the suit in the first place.”

Sierra Club, 120 Hawai‘i at 229 n.30, 202 P.3d at 1274 n.30.

Therefore, “no clear statutory waiver . . . that could be

extended to attorney’s fees” is present when the underlying claim

is for declaratory and/or injunctive relief.          Id.    Moreover, we

have also already held that declaratory and injunctive relief

based on claims of constitutional violations is “not ‘cognizable

under HRS chapter 661. . . .’”       Kaho‘ohanohano, 114 Hawai‘i at

338, 162 P.3d at 732 (brackets omitted).         Because Fought and

Sierra Club would allow attorneys’ fees awards based upon waivers

of sovereign immunity over the underlying claims, found in HRS §

661-1 and HRS §§ 607-14 and 343-7, respectively, these cases are

of little assistance to the Plaintiffs and the

Concurrence/Dissent.

          2.   Chapter 673

     Additionally, Plaintiffs argue that the State also waived

its sovereign immunity pursuant to Chapter 673 (1993), the Native

Hawaiian Trusts Judicial Relief Act.        Chapter 673 governs claims

of mismanagement of Home Lands Trust assets.          It is true that

Chapter 673 contains a clear general waiver of the State’s

sovereign immunity, see Office of Hawaiian Affairs v. State, 110

Hawai‘i 338, 358, 133 P.3d 767, 787 (2006)(“A plain reading of

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HRS § 673-1 indicates that it unequivocally waives the State’s

sovereign immunity” over breach of trust claims), HRS § 673-1(a)

(“The State waives its immunity for any breach of trust or

fiduciary duty resulting from the acts or omissions of its

agents, officers and employees in the management and disposition

of trust funds and resources of . . . [t]he Hawaiian home lands

trust. . . .”).    There is also a clear fee-shifting provision,

which arguably could include attorneys’ fees under the private

attorney general doctrine.      See, e.g., HRS § 673-5(b)(1993)(“In

any action brought under this chapter in which there is no

finding by the court that the claims pled were frivolous the

court may, as it deems just, award to a prevailing plaintiff and

enter as a part of its order or judgment, a reasonable sum for

costs and expenses incurred, including reasonable attorney’s

fees.”)   Plaintiffs, however, did not bring their claims under

Chapter 673 in their First Amended Complaint; Chapter 673 is not

even mentioned.

     Although Plaintiffs’ allegations are about the Hawaiian Home

Lands Trust, they contend that the State failed to provide

sufficient sums to DHHL in violation of its constitutional

obligations under Article XII, §§ 1 and 2, and not in violation

of Chapter 673.    Plaintiffs allege that DHHL also violated the

constitution and breached its fiduciary duties by failing to


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request sufficient sums, that DHHL breached its fiduciary duties

by commercially leasing homestead lands in Kealakehe to a non-

Hawaiian entity, and that DHHL should be prohibited from

commercially leasing homestead lands for non-homesteading

purposes without first making specific findings that such lands

are not needed for homesteads.       Their claims against DHHL

expressly sound in trust law, not Chapter 673.

     Although Plaintiffs do not allege that existing trust land

or assets were improperly managed or disposed of, they do allege

that “sufficient sums” are constitutionally mandated to be added

to the trust assets and the Defendants have breached

constitutional and trust duties in failing to do so.            From that

perspective, Plaintiffs’ claims appear to fall under Chapter 673

because they are about “breach of trust or fiduciary duty

resulting from the acts or omissions of [the State’s] agents,

officers and employees in the management and disposition of trust

funds and resources of . . . [t]he Hawaiian home lands trust[.]”

     However, Plaintiffs did not assert Chapter 673 in their

First Amended Complaint.      In addition, other provisions in

Chapter 673 make it apparent that, while Plaintiffs generally

allege breach of trust, their claims do not allege Chapter 673

violations or seek Chapter 673 relief.         First, the relief

Plaintiffs request does not match the relief authorized under


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Chapter 673.    In their First Amended Complaint, Plaintiffs’

requested only declaratory and injunctive relief, not damages

(other than attorneys’ fees), and not a return of trust land or

moneys, which is the only relief that Chapter 673 authorizes.

See HRS § 673-4(a) (1993) (“In an action under this chapter the

court may only award land or monetary damages to restore the

trust which has been depleted as a result of any breach of trust

duty[,]” as well as some actual damages).8

      Second, there is no evidence in the record that Plaintiffs

complied with HRS § 673-3 (1993)’s notice and exhaustion of

administrative remedies requirements, which are:
            Before an action may be filed in circuit court under this
            chapter, the party filing suit shall have exhausted all
            administrative remedies available, and shall have given not
            less than sixty days written notice prior to filing of the
            suit that unless appropriate remedial action is taken suit
            shall be filed. All executive branch departments shall
            adopt in accordance with chapter 91, such rules as may be
            necessary to specify the procedures for exhausting any
            remedies available.

There is a process by which Plaintiffs could have exhausted their

administrative remedies.       See, e.g., Hawai‘i Administrative Rules

Chapter 5, Title 10, Subchapter 3, Contested Case Rules.

      Failure to comply with HRS § 673-3 has proven fatal to

8
      One law review article has interpreted Chapter 673 to exclude injunctive
relief. See Eric K. Yamamoto, Moses Haia, and Donna Kalama, Courts and the
Cultural Performance: Native Hawaiians’ Uncertain Federal and State Rights to
Sue, 16 U. HAW. L. REV. 1, 74 (1994)(“Most important, Chapter 673 limits
available remedies. Suits may be initiated only to restore the trust corpus
depleted by the wrongful alienation or use of trust lands or funds, and to
recover actual out-of-pocket damages sustained by individual claimants.
Chapter 673 does not authorize consequential damages, punitive damages, land
awards or injunctive relief.”)(footnotes omitted).

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Chapter 673 breach of trust claims.        In Office of Hawaiian

Affairs, 110 Hawai‘i at 359, 133 P.3d at 788, the only case

construing Chapter 673, we held that plaintiffs must exhaust

their administrative remedies and provide sixty days’ notice,

pursuant to HRS § 673-3; absent fulfillment of these

requirements, the circuit and appellate courts lack subject

matter jurisdiction over the Chapter 673 claims.           Plaintiffs’

claims were not brought under Chapter 673 because Chapter 673 is

not mentioned in their First Amended Complaint, and there is

nothing in the record about the exhaustion of administrative

remedies and the notice given to the State Defendants.            That

being the case, the circuit court would have lacked jurisdiction

to hear claims alleging Chapter 673 violations, and this court is

“preclude[d] from reviewing any claims brought under Chapter

673,” including, presumably, claims for an award of attorneys’

fees pursuant to the private attorney general doctrine.            Id.

     In short, it would appear, as Defendants argue, that

Plaintiffs’ after-the-fact reliance on Chapter 673 for a waiver

of the State’s sovereign immunity is solely for the purpose of

their attorneys’ fee request.       Plaintiffs’ claims were not made

under Chapter 673.




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          3.   Article XII

     Rather, at their core, and as asserted in their First

Amended Complaint, Plaintiffs’ claims were about the Defendants’

violation of their constitutional duties under Article XII,

Section 1.   In Kaho‘ohanohano, 114 Hawai‘i at 338, 162 P.3d at

732, this court considered claims based on the Hawai‘i

Constitution to be “not cognizable under HRS § 661” as “not

‘founded upon any statute of the State. . . .’”          Thus, one must

look to the true basis of Plaintiffs’ claim, Article XII, Section

1, for a clear waiver of the State’s sovereign immunity, and

there is none.    Article XII, Section 1 provides:
                Anything in this constitution to the contrary
          notwithstanding, the Hawaiian Homes Commission Act, 1920,
          enacted by the Congress, as the same has been or may be
          amended prior to the admission of the State, is hereby
          adopted as a law of the State, subject to amendment or
          repeal by the legislature; provided that if and to the
          extent that the United States shall so require, such law
          shall be subject to amendment or repeal only with the
          consent of the United States and in no other manner;
          provided further that if the United States shall have been
          provided or shall provide that particular provisions or
          types of provisions of such Act may be amended in the manner
          required for ordinary state legislation, such provisions or
          types of provisions may be so amended. The proceeds and
          income from Hawaiian home lands shall be used only in
          accordance with the terms and spirit of such Act. The
          legislature shall make sufficient sums available for the
          following purposes: (1) development of home, agriculture,
          farm and ranch lots; (2) home, agriculture, aquaculture,
          farm and ranch loans; (3) rehabilitation projects to
          include, but not limited to, educational, economic,
          political, social and cultural processes by which the
          general welfare and conditions of native Hawaiians are
          thereby improved; (4) the administration and operating
          budget of the department of Hawaiian home lands; in
          furtherance of (1), (2), (3) and (4) herein, by
          appropriating the same in the manner provided by law.
                Thirty percent of the state receipts derived from the
          leasing of cultivated sugarcane lands under any provision of

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            law or from water licenses shall be transferred to the
            native Hawaiian rehabilitation fund, section 213 of the
            Hawaiian Homes Commission Act, 1920, for the purposes
            enumerated in that section. Thirty percent of the state
            receipts derived from the leasing of lands cultivated as
            sugarcane lands on the effective date of this section shall
            continue to be so transferred to the native Hawaiian
            rehabilitation fund whenever such lands are sold, developed,
            leased, utilized, transferred, set aside or otherwise
            disposed of for purposes other than the cultivation of
            sugarcane. There shall be no ceiling established for the
            aggregate amount transferred into the native Hawaiian
            rehabilitation fund.

      There being no waiver of the State’s sovereign immunity

under Article XII, Section 1 for an award of attorneys’ fees, the

State’s sovereign immunity bars an award of appellate attorneys’

fees to Plaintiffs based on the private attorney general

doctrine, based on the record that exists at this juncture.

      The Dissent argues that “because Plaintiffs’ constitutional

claims in the underlying action did not implicate the State’s

sovereign immunity, their claims for an award of attorneys’ fees

under the private attorney general doctrine should not require a

separate waiver of sovereign immunity.”           Concurrence/Dissent at

V.   Implicit in this argument is an extension of Fought’s HRS §

661-1 holding to cases involving constitutional violations.                In

support of this argument, the Dissent states, “A waiver of

sovereign immunity separate from the underlying claim is not

necessary under this court’s prior jurisprudence, . . . whether

the waiver is founded on statute, see Fought, 87 Hawai‘i at 56,

951 P.2d at 506, or the claim is founded on a constitutional



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provision, see Kaho‘ohanohano, 114 Hawai‘i at 337, 163 P.3d at

731.”   Concurrence/Dissent at IV.

     Respectfully, this statement expands Fought’s holding too

broadly and misapplies Kaho‘ohanohano.        Relevant to this case,

Kaho‘ohanohano held only that sovereign immunity is no defense

against a claim for declaratory and injunctive relief concerning

an act of the legislature that allegedly violated the Hawai‘i

Constitution.   Kaho‘ohanohano, 114 Hawai‘i at 335-38, 162 P.3d at

729-32.   Attorneys’ fees were not at issue.         Therefore,

Kaho‘ohanohano does not stand for the proposition that if the

underlying action is not barred by sovereign immunity, an

entitlement to fees follows.

     In fact, we have already expressly rejected this argument on

a motion for attorneys’ fees nearly indistinguishable from the

instant one on the issue of sovereign immunity.          In Taomae, as in

this case, the plaintiffs prevailed on their claim that the state

legislature’s action violated the Hawai‘i Constitution.            110

Hawai‘i at 332, 132 P.3d at 1243.        The Taomae plaintiffs then

requested attorneys’ fees, declaring (similarly to the

Concurrence/Dissent) that “if sovereign immunity does not bar the

underlying action, then no waiver is required for the imposition

of fees and costs” pursuant to this court’s “inherent powers.”


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110 Hawai‘i at 333, 132 P.3d at 1244.        We rejected that argument,

holding “simply because ‘sovereign immunity did not bar the

instant contest,’” because the plaintiffs’ claim was for

injunctive relief, “it cannot be assumed that an assessment of

fees and costs is appropriate.”       Id.   We denied attorneys’ fees,

concluding, “Plaintiffs have not demonstrated an entitlement to

fees under Fought.    And unlike in Fought, no statute authorizes a

shift in fees. . . .”     Id.   Thus, contrary to the Dissent’s

assertion in Concurrence/Dissent at II.A, this case is

indistinguishable from Taomae.       Even where the underlying suit

for declaratory and injunctive relief for a constitutional

violation is not precluded by sovereign immunity, there must

exist some authorization for a shift in attorneys’ fees, as those

are in the nature of damages.       In this case, there is no such

authorization.

     Kaho‘ohanohano also did not apply Fought’s HRS § 661-1

holding to constitutional claims, and in fact, held that

constitutional claims are not founded upon any statute and are

therefore not cognizable under HRS § 661.         114 Hawai‘i at 338,

162 P.3d at 732.    In short, there exists no authority entitling a

prevailing party to attorneys’ fees under the private attorney

general doctrine where sovereign immunity did not preclude an

underlying declaratory and/or injunctive relief claim that the


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State violated the Hawai‘i Constitution.

     D.    Costs

     HRAP Rule 39(d)(2012) requires parties requesting appellate

costs to “submit[] an itemized and verified bill of . . . costs,

. . . and, where appropriate, copies of invoices, bills,

vouchers, and receipts. . . .”       In this case, Plaintiffs filed an

Exhibit A with their request for costs that did not include

supporting documentation such as invoices, bills, vouchers, and

receipts.

     DHHL objected to the costs request as noncompliant with HRAP

Rule 39.    When an adverse party objects to the award of costs on

the basis of noncompliance with HRAP Rule 39’s itemization and

documentation requirements, this court may deny those costs.

See, e.g., Rapozo v. Better Hearing of Hawai‘i, LLC, 120 Hawai‘i

257, 264, 204 P.3d 476, 483 (2009).

     Plaintiffs then submitted with their Reply a corrected costs

request, including copies of invoices, bills, vouchers, and

receipts.    Documented cost requests that are unchallenged by an

adverse party can be granted without regard to their

reasonableness.    Blair v. Ing, 96 Hawai‘i 327, 335, 31 P.3d 184,

192 (2001).    It would not be fair, however, to presume

Plaintiffs’ costs to be reasonable, as neither the State nor DHHL

has had an opportunity to challenge the reasonableness of

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Plaintiffs’ costs, because they were itemized and documented for

the first time in Plaintiffs’ Reply, and nothing in the Hawai‘i

Rules of Appellate Procedure allows the State or DHHL to file any

response to a Reply.     Accordingly, Plaintiffs’ request for costs

is denied without prejudice.      See County of Hawai‘i v. C & J

Coupe Family Ltd. P’ship, 120 Hawai‘i 400, 414-15, 208 P.3d 713,

727-28 (2009)(“[W]aiting until the Errata to provide the

appropriate support [for fees] leaves the [Appellee] without an

opportunity to make specific objections to those items.

Therefore, Appellant’s request for attorneys’ fees for

preparation of the Request and the subsequent Response is

denied.”)   At the appropriate time upon remand, Plaintiffs may

renew their request for appellate costs before the circuit court,

which is in a position to award both trial and appellate costs.

A properly documented appellate cost request will allow both the

State and DHHL an opportunity to file any objections.




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III.    Conclusion

       Plaintiffs’ request for appellate attorneys’ fees pursuant

to the private attorney general doctrine is denied as barred by

the doctrine of sovereign immunity, based on the record that

exists at this juncture.      Plaintiffs’ requests for appellate

costs is denied without prejudice.

Robert K. Nakatsuji,                     /s/ Mark E. Recktenwald
Girard D. Lau, and
Charleen M. Aina for                     /s/ Paula A. Nakayama
petitioners/defendants/
appellees                                /s/ Sabrina S. McKenna

David Kimo Frankel and
Alan T. Murakami for
respondents/plaintiffs/
appellants

Melvyn M. Miyagi,
Brian A. Kang, and
Emi L. M. Kaimuloa for
respondents/defendants/
appellees




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