OAHU PUBLICATIONS, INC., dba the Honolulu Star-Advertiser, Petitioner/Plaintiff-Appellee,
NEIL ABERCROMBIE, in his official capacity as Governor of the State of Hawai'i, Respondent/Defendant-Appellant
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS. ICA NO. CAAP-13-0000127; CIV. NO. 11-1-1871.
Diane D. Hastert, Robert H. Thomas, Mark M. Murakami, and Christopher J.I. Leong, for petitioner.
Charleen M. Aina, for respondent.
RECKTENWALD, C.J., NAKAYAMA, J., AND CIRCUIT JUDGE BROWNING, IN PLACE OF McKENNA, J., RECUSED, CIRCUIT JUDGE CASTAGNETTI, IN PLACE OF POLLACK, J., RECUSED, AND CIRCUIT JUDGE CHANG, IN PLACE OF WILSON, J., RECUSED.
[134 Hawai'i 17] RECKTENWALD, C.J.
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
[134 Hawai'i 18] his official capacity as Governor of the State of Hawai'i, under the Uniform Information Practices Act (UIPA), Hawai'i Revised Statutes (HRS) Chapter 92F, seeking to obtain the list of nominees considered for a vacancy on the Hawai'i 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 Hawai'i 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 Hawai'i 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.
Oahu Publications filed a four-count complaint pursuant to the UIPA, HRS Chapter
[134 Hawai'i 19] 92F, seeking to compel the Governor " to honor Hawai'i's strong public policy of open, transparent, and accountable government" by publicly disclosing " the list of the nominees presented to him in January 2011 by the Judicial Selection Commission (JSC) from which he appointed Associate Justice Sabrina McKenna" to the Hawai'i Supreme Court. Oahu Publications alleged that the Governor rejected multiple requests to release the list of judicial nominees, and that the Governor stated he would not disclose the list unless a court ordered him to do so.
Oahu Publications' complaint included the following counts: (1) failure to grant access to requested records, in violation of HRS § 92F-11 (1993 & Supp. 2011); (2) failure to respond to the request in a timely manner, in violation of Hawai'i Administrative Rules (HAR) § 2-71-13 (1999); (3) reasonable attorneys' fees and expenses, pursuant to HRS § 92F-15(d) (1993);  and (4) a request for declaratory relief. Oahu Publications' prayer for relief included a request for " an order and judgment compelling Governor Abercrombie to disclose the list presented to him by the JSC of the nominees to fill the vacancy in the office of Associate Justice of the Supreme Court of Hawai'i created by Governor Lingle's appointment of then-Associate Justice Mark Recktenwald as Chief Justice" ; a declaratory judgment that after the Senate has consented to a judicial appointment, a governor must disclose the list of judicial nominees; and an order assessing reasonable attorneys' fees and expenses pursuant to HRS § 92F-15(d).
Oahu Publications filed a motion for summary judgment, and the Governor subsequently filed a cross-motion for summary judgment. Following a hearing on November 14, 2011, the circuit court granted Oahu Publications' motion for summary judgment. The circuit court concluded that the Governor was required to disclose the list of judicial nominees pursuant to HRS § 92F-11, and that the Governor had failed to demonstrate that one of the enumerated exceptions set forth in HRS § 92F-13 (1993) applied. The circuit court further concluded that the limitations on disclosures of government records to other agencies, set forth in HRS § 92F-19 (1993 & Supp. 2011), did not apply. The circuit court filed its written order on December 13, 2011.
In the meantime, on November 28, 2011, Oahu Publications filed a motion for attorneys' fees and costs, pursuant to HRS § 92F-15(d), HRS § 607-9 (1993), and Hawai'i Rules of Civil Procedure (HRCP) Rule 54(d) (2000). Oahu Publications sought $66,822.29 in attorneys' fees incurred in the circuit court, $5,000 in attorneys' fees accrued in seeking to collect fees and costs, and $1,177.87 in costs and expenses. The Governor opposed Oahu Publications' motion, and Oahu Publications filed a reply.
On June 8, 2012, the circuit court issued an order granting Oahu Publications' motion for attorneys' fees and costs. The circuit court concluded that " the fees and costs requested by [Oahu Publications] are reasonable and that, pursuant to Haw. Rev. Stat. § 92F-15, [Oahu Publications], as the complainant prevailed in an action brought under the Uniform Information Practices Act, and this court 'shall assess against the agency reasonable attorney's fees and all other expenses reasonably incurred in the litigation.'" The circuit court further concluded that " given the novel and complex issues presented by this case and the extensive research it entailed, the time expended by the attorneys for [Oahu Publications] was reasonable, as demonstrated by the exhibits attached to [Oahu Publications'] motion and supporting papers." The circuit court awarded Oahu Publications $61,566.47 in attorneys' fees for work performed through the summary judgment hearing, $6,282.72 in attorneys' fees to litigate the fees motion, and $1,777.87 in costs and expenses. The circuit court entered judgment on June 29, 2012, awarding Oahu Publications $69,627.06.
On July 6, 2012, the Governor timely filed a notice of appeal, and the case was docketed in the ICA as CAAP-12-0000625. In his appeal, the Governor did not challenge the
[134 Hawai'i 20] circuit court's conclusions on the underlying disclosure issue. He only challenged the order granting Oahu Publications' motion for attorneys' fees and costs, and the resulting judgment.
The Governor filed his opening brief on October 9, 2012, Oahu Publications filed its answering brief on November 16, 2012, and the Governor filed his reply brief on December 1, 2012. Briefly stated, the Governor argued that the circuit court lacked sufficient information to determine the reasonableness of the hours spent by Oahu Publications on this case; the circuit court's fees and costs award was unreasonable; and Oahu Publications should not have been reimbursed for photocopying costs.
On December 27, 2012, the ICA dismissed the appeal sua sponte for lack of jurisdiction. The ICA explained that the June 29, 2012 judgment " does not satisfy the requirements for an appealable final judgment under Hawaii Revised Statutes (HRS) 641-1(a) (1993 & Supp. 2011), Rule 58 of the Hawai'i Rules of Civil Procedure (HRCP) and the holding in
Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai'i 115, 119, 869 P.2d 1334, 1338 (1994)." The ICA explained that, although the complaint alleged " four separate and distinct counts against Appellant Abercrombie, the June 29, 2012 judgment does not specifically identify whether the circuit court intends to enter judgment on all four counts in the . . . complaint or merely some of the four counts in the . . . complaint."
The Governor filed a motion for reconsideration, which Oahu Publications joined. On January 10, 2013, the ICA entered an order denying the Governor's motion for reconsideration. Oahu Publications did not file a motion to recover attorneys' fees and costs associated with this first appeal within fourteen days of the ICA's denial of the motion for reconsideration.
After the ICA dismissed the first appeal, the circuit court entered a second amended final judgment on February 8, 2013. On March 1, 2013, the Governor timely filed a second notice of appeal. On March 14, 2013, the Governor filed a stipulation informing the court that the parties had agreed to file their briefs from the first appeal, with updated references to the record on appeal. The parties also agreed on an accelerated briefing schedule. Specifically, the parties agreed that the Governor's opening brief would be filed no later than seven days after the filing of the record on appeal, Oahu Publications' answering brief no ...