CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0000061; CIV. NO. 09-1-1828)
David M. Louie, William J. Wynhoff, and Marie Manuele Gavigan for petitioners Department of Land and Natural Resources, et al.
David Kimo Frankel and David Kauila Kopper for respondent Dana Naone Hall
Recktenwald, C.J., Nakayama, and McKenna, JJ.
We accepted certiorari in this case to address the Intermediate Court of Appeals's (ICA) order awarding attorneys' fees and costs against the State defendants pursuant to the private attorney general doctrine.
This case originated from Kawaiaha'o Church's disinterment of human remains during the initial stages of construction of its new multipurpose building. Dana Naone Hall (Hall), a native Hawaiian, has family members who were buried on Kawaiaha'o Church's property and she opposed the disinterments. She filed a complaint in the Circuit Court of the First Circuit (circuit court) against the State defendants and the Kawaiaha'o Church defendants seeking declaratory and injunctive relief. Her suit alleged, in part, that the disinterments were unlawful because Kawaiaha'o Church failed to conduct an Archaeological Inventory Survey (AIS) or to receive the approval of the O'ahu Island Burial Council (OIBC) before conducting the disinterments and that the Department of Health' s issuance of a disinterment permit was unlawful and unconstitutional. Following cross motions for summary judgment, the circuit court granted summary judgment in favor of the defendants on all of Hall's eleven counts.
Hall appealed to the ICA. On December 14, 2012, the ICA published an opinion concluding that an AIS should have been conducted before construction began on Kawaiaha'o Church's new multipurpose building. Hall v. Dep't of Land & Natural Res., 128 Hawai'i 455, 463-69, 290 P.3d 525, 533-39 (App. 2012). The ICA vacated the circuit court's final judgment with respect to nine of Hall's eleven counts and remanded the case to the circuit court for further proceedings. Id. at 458, 290 P.3d at 528.
Hall subsequently filed a motion requesting attorneys' fees and costs pursuant to the private attorney general doctrine. By order of March 20, 2013, the ICA granted, in part, Hall's request for attorneys' fees and costs. The ICA awarded Hall $31, 225 in attorneys' fees and $365 in costs against the Kawaiaha'o Church defendants and the State defendants, jointly and severally.
We affirm the ICA's opinion vacating the circuit court's final judgment with respect to nine of Hall's eleven counts and remanding the case to the circuit court for further proceedings. However, we hold that, as Hall concedes, the State's sovereign immunity barred the award of attorneys' fees and costs against the State defendants.
Under the ''American Rule, ' ", each party is responsible for paying his or her own litigation expenses.'" Kaleikini v. Yoshioka (Kaleikini II), 129 Hawai'i 454, 462, 304 P.3d 252, 260 (2013) (quoting Sierra Club v. Dep't of Transp., 120 Hawai'i 181, 218, 202 P.3d 1226, 1263 (2009)). The private attorney general doctrine is an exception to this general rule.
"[This 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."
Maui Tomorrow v. State, Bd. of Land & Natural Res., 110 Hawai'i 234, 244, 131 P.3d 517, 527 (2006) (quoting In re Water Use Permit Applications, 96 Hawai'i 27, 29, 25 P.3d 802, 804 (2001)).
However, the doctrine of sovereign immunity bars the award of attorneys' fees and costs against the State unless there was "'a clear relinquishment of the State's immunity.'" Kaleikini II, 129 Hawai'i at 467, 304 P.3d at 265 (some internal quotation marks omitted) (quoting Sierra Club v. Dep't of Transp., 120 Hawai'i at 226, 202 P.3d at 1271). Historically, "Mt]he 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.'" Id. (quoting State ex rel. Anzai v. Honolulu, 99 Hawai'i 508, 515, 57 P.3d 433, 440 (2002)). Hawai'i courts have interpreted the doctrine of sovereign immunity to extend to such suits in state courts. Id.; see also Pele Def. Fund v. Paty, 73 Haw. 578, 606-607, 837 P.2d 1247, 1264-65 (1992); W.H. Greenwell, Ltd. v. Dep't of Land & Natural Res., 50 Haw. 207, 208, 436 P.2d 527, 528 (1968). The State created "a limited waiver of sovereign immunity" in Hawai'i Revised Statutes (HRS) § 661-1(1), strictly construed in ...