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Supreme Court of Hawaii
August 9, 2013
IN THE MATTER OF THE APPLICATION OF HONOLULU CONSTRUCTION AND DRAYING COMPANY, LIMITED, to register and confirm title to land situate at Honolulu, City and County of Honolulu, State of Hawai'i, ALOHA TOWER DEVELOPMENT CORPORATION, Respondent/Petitioner,v.STATE OF hawai'i, DEPARTMENT OF LAND AND NATURAL RESOURCES, trustees of the william g. irwin charity foundation, scenic hawai'i, inc., the outdoor circle, historic hawai'i foundation, hawai'i'S THOUSAND FRIENDS, LIFE OF THE LAND, WILLIAM OLDS, JR. AND JANE OLDS BOGARD, AND INTERVENOR, CITY AND COUNTY OF HONOLULU, Respondents/Respondents, and SCENIC hawai'i, inc., Petitioner/Respondent-Cross-Appellee,v.ALOHA TOWER DEVELOPMENT CORPORATION, Respondent/Petitioner-Cross-Appellant.
John T. Hoshibata, Rex Y. Fujichaku, and Dana A. Barbata, for petitioner.
Deirdre Marie-Iha, for respondent.
We hold that the Land Court (the court)[1] was right in awarding attorneys' fees and costs under the private attorney general doctrine, see Sierra Club v. Dep't of Transp. of State of Hawai'i, 120 Hawai'i 181, 218, 202 P.3d 1226, 1263 (2009) (Sierra Club II), to Petitioner/Respondent-Cross-Appellee Scenic Hawai'i, Inc. (Scenic Hawai'i)[2], inasmuch as (1) the subject litigation vindicated the important public policy of preserving public parks and historic sites, (2) the early and prompt intervention of Scenic Hawai'i was necessary in light of the efforts by Aloha Tower Development Corporation (ATDC), Respondent/Petitioner-Cross-Appellant, represented by the Attorney General (AG), to rescind the park status of the park involved, [3] and (3) a significant number of people will benefit from the use of the park and its preservation as a historical site, and from the general precedential value of this case in enforcing the dedication of land for public parks and as historic sites.
Because the Intermediate Court of Appeals (ICA) held to the contrary, we vacate the January 18, 2013 judgment of the ICA filed pursuant to its December 19, 2012 Published Opinion[4], and affirm the March 29, 2010 Final Judgment of the court.
The private attorney general doctrine was first discussed by this court in In re Water Use Permit Applications, 96 Hawai'i 27, 25 P.3d 802 (2001) (Waiahole II). "[N]ormally, pursuant to the ''American Rule, ' each party is responsible for paying his or her own litigation expenses." Sierra Club II, 120 Hawai'i at 218, 202 P.3d at 1263 (quoting Fought & Co. v. Steel Eng'g and Erection, Inc., 87 Hawai'i 37, 50-51, 951 P.2d 487, 500-01 (1998) (brackets omitted)). However, this court has recognized the private attorney general doctrine as an exception to this general rule. See, e.g., Sierra Club II, 120 Hawai'i at 181, 202 P.3d at 1226; Maui Tomorrow v. Bd. of Land & Natural Res., 110 Hawai'i 234, 131 P.3d 517 (2006); Waihole II, 96 Hawai'i at 29, 25 P.3d at 804 (2001). The private attorney general doctrine sets forth an equitable rule enabling an award of attorneys' fees for vindication of important public rights. Sierra Club II, 120 Hawai'i at 218, 202 P.3d at 1263 ("within the equitable powers of the judiciary to provide, is the award of substantial attorneys fees to those public-interest litigants and their attorneys . . . .") (quoting Serrano v. Priest, 20 Cal.3d 25, 141 Cal.Rptr. 315, 569 P.2d 1303, 1313-14 (1977)).
Courts applying the 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, [and] (3) the number of people standing to benefit from the decision. Id. (quoting Maui Tomorrow, 110 Hawai'i at 244, 131 P.3d at 527) (brackets omitted)(emphasis added).
In 1930, Helene Irwin Fagan (Fagan) dedicated Irwin Park[5] to the Territory of Hawai'i (Territory) in trust "to be used as a public park to beautify the entrance to Honolulu Harbor." The deed and trust agreement between Fagan and the Territory included four restrictive covenants (Restrictions and Conditions) that governed the use and maintenance of Irwin Park, including preserving and using Irwin Park as a public park. The pertinent Restrictions and Conditions are as follows:
(1) [t]he [Territory] shall . . . within three (3) years from and after the date hereof have converted all of said land, into a public park to be designated as the "Irwin Memorial Park."
(2) The [Territory] shall, at all times hereafter, suitably maintain all of said real property as a public park under the jurisdiction and control of the . . . Harbor Commissioners, or their successors in office ....
(4) In the event that . . . all of said land shall not be suitably maintained by the [Territory] at any time hereafter as a public park, or if said public park shall at any time cease to be designated as "Irwin Memorial Park[, ]" or if at any time hereafter any portion of said land shall be abandoned as a public park, . thereupon forthwith all right, title [, ] and interest of the [Territory], and its successors and thereof, shall forthwith terminate, and title to all of said real property hereby conveyed shall forthwith immediately and without further act of either party to this agreement, their successors or assigns, revert to [Fagan], and her heirs and assigns, in fee simple absolute
(Emphasis added.)
On March 13, 1931, Territorial Governor Lawrence M. Judd issued Executive Order No. 473 (Executive Order) which set aside and converted the property into a public park and adopted the Restrictions and Conditions set forth in the deed of Fagan to the Territory. This Executive Order has been and remains in full force and effect since March 13, 1931.
Prior to 1951, the Territory, through its Department of Public Works (DPW), developed plans to improve, construct, and widen Nimitz Highway. The plans required encroachment upon a portion of Irwin Park that totaled 24, 303 square feet. By a letter dated August 7, 1951, the Territory, through R. M. Belt, the then Superintendent of the DPW, wrote to Fagan to request her consent to the construction and waiver of all of the Restrictions and Conditions.
On January 25, 1952, Wilford D. Godbold (Godbold), a Special Deputy Attorney General with the DPW, wrote to Fagan regarding the Nimitz Highway Plan. Godbold's letter to Fagan stated, in relevant part:
In connection with the above referred matter [regarding construction of the Nimitz Highway] an opinion has been received from the Territorial Attorney General and an appraisal has been obtained from the Territorial Board of Appraisers whereby an exchange has been held proper in connection with [] Fagan's reversionary interest in the portion of Irwin Memorial Park. The Territorial land which can be exchanged for such interest is of course limited to the value of $5, 000.00. Pursuant to your request, an appraisal is now being made of the Hana Airport land by the Territorial Board of Appraisers ....
It is therefore requested that you confirm, on the enclosed copy of this letter, your previous statement that [] Faqan would waive all of the reversionary provisions contained in that deed dated November 7, 1930 and recorded in Registration Book 99, Page 229, in the Bureau of Conveyances at Honolulu. The necessary instruments to formalize this waiver and proposed exchange will be prepared as soon as possible. You will be informed immediately upon the receipt of the appraisal of the Maui land.
(Emphases added.) Fagan responded to Godbold's letter on January 31, 1952 by signing a copy of his letter with the following insertion over her signature:
Waiver is hereby made of any and all damages resulting from a breach of the conditions contained in that certain deed above referred to. It is hereby agreed that the restrictive conditions contained in such deed will be withdrawn and cancelled.
Nimitz Highway was constructed and the construction encroached upon Irwin Park. However, the proposed exchange of Hana land never occurred, and the agreement set forth by Fagan in the January 31, 1952 letter she wrote in response to Godbold's January 25, 1952 letter was never consummated. There was apparently no further communication or documentation regarding the proposed exchange.
Fagan died on May 30, 1966 in California. William L. Olds, Jr (Olds) and Jane Olds Bogart (Bogart) are Fagan's grandchildren and heirs. The William G. Irwin Charity Foundation (Foundation) is named in Fagan's will as the principal beneficiary of her residuary estate.
In 1981, the Hawai'i State Legislature enacted Hawai'i Revised Statutes (HRS) Chapter 206J. HRS § 206J-4 (Supp. 2008)[6]established the ATDC. HRS § 206J-1 (2001), entitled "Findings and Purpose", setting forth the purpose of the chapter, states in relevant part that, "[t]he legislature finds that the area in downtown Honolulu on the waterfront, including . . . Irwin Memorial Park ... is one of the most valuable properties in downtown Honolulu .... The legislature finds and determines that the purpose of this chapter is in the public interest and constitutes a valid public purpose."
Additionally, HRS § 206J-6 (2001), in part, codified Executive Order 472 by placing limitations on the ATDC with respect to Irwin Park. HRS § 206J-6(c) provides that "Irwin Memorial Park shall be retained as a public park subject to the reservations and conditions set forth in the deed of Helen Irwin Fagan to the Territory of Hawai'i." (Emphasis added.)
In October 1999, the Hawai'i Historic Places Review Board placed Irwin Park on the Hawai'i Register of Historic Places, which confirmed Irwin Park's status as a historic property pursuant to HRS § 6E and Hawai'i Administrative Rules Title 13, Chapter 198.
The proceedings underlying the instant request for attorneys' fees may be summarized briefly. On May 15, 2001, ATDC filed a Petition in the court to expunge the deed restriction on Irwin Park requiring that it be preserved as a public park (Petition). The Certificate of Service attached to the Petition states that it was served upon John W.K. Chang, the attorney for Party-in-Interest State of Hawai'i (the State), and "Jane Fagan Olds and William Olds, Trustees of the William G. Irwin Charity Foundation."
On May 15, 2001, ATDC filed an ex parte application for an Order to Show Cause (Order to Show Cause) giving the parties in interest, including the State and the Foundation notice of the Petition, and an Order to Show Cause was issued on the same date by the court. On June 8, 2001, Scenic Hawai'i and four other preservation organizations[7] moved the court for leave to intervene in the litigation in order to preserve Irwin Park as a public park. On the same date, Scenic Hawai'i filed an ex parte application to shorten time on its Motion to Intervene, stating that if the motion to shorten time was not granted, "the only parties who will be present in [c]ourt on [the date of the Order to Show Cause hearing] will be the State of Hawai'i and possibly the [] Foundation." On June 14, 2001, ATDC filed a Memorandum in Opposition to Scenic Hawai'i's Motion to Intervene. Also on June 14, 2001, the Foundation answered ATDCs May 15, 2001 Petition, stating, inter alia, that "the ''reservations and conditions' in the Fagan deed have never been waived, released or abandoned by the Grantor nor her successors and assigns."
On June 15, 2001, the City & County of Honolulu (City) moved to intervene. The City's Memorandum in Support of its Motion to Intervene stated, inter alia, that, "[o]nce the restrictive covenants are removed, it is the City's understanding that ATDC intends to replace [Irwin] Park and parking area with a multi-level parking structure." In support of its right to intervene, the City's memorandum further stated that "[i]t cannot be disputed that the City has an obligation, arguably a responsibility, to take actions which substantially advance legitimate public interests, including protecting and preserving open space and the health and welfare to the public that open spaces in urban areas afford." The City's memorandum also went on to argue that its intervention was proper because its interest was inadequately represented by the existing parties to the suit. On this point, the City alleged that "even if the heirs of [] Fagan were properly served, their interest may not be parallel with that of the City in preserving the Park, " because, "[t]he heirs, who apparently live outside the State of Hawai'i, may instead prefer to reach a monetary settlement with ATDC to waive the restrictive covenants in the deed." The City also acknowledged that Scenic Hawai'i "at least to the extent of preserving [Irwin] Park, [has] similar interests as the City."
On June 18, 2001, the court granted Scenic Hawai'i's Motion to Intervene. On June 27, 2001, Bogart and Olds, as individuals, filed their Answer and Response to the Petition of May 15, 2001, asserting an interest in Irwin Park and in the restrictive covenant that ATDC sought to expunge. At a hearing on July 2, 2001, the City's Motion to Intervene was granted.
On April 2, 2002, the court, in response to a motion by ATDC, filed an Order to Show Cause ordering the State and DLNR to appear as parties in interest. On May 2, 2002, the State and DLNR filed a Response to the Order to Show Cause. The State and DLNR responded in support of ATDCs filing of the Petition.
In November and December 2002, a non-jury trial was held. At the close of trial on December 12, 2002, the court orally denied the petition, stating:
Therefore for these and other good cause shown in the record the court concludes that the restrictive covenants and reversionary interests contained in the 1930 deed are still valid and in full force and effect. Since the covenants and reversionary interests are still in effect, there is an absence of good cause to grant the [P]etition. Therefore the [P]etition is denied.
Scenic Hawai'i[8] filed a Motion for Attorneys' Fees and Costs on August 28, 2008, "pursuant to Rules 7 and 54(d) of the Hawai'i Rules of Civil Procedure and the common law principles set forth in Maui Tomorrow[], 110 Hawai'i 234, 131 P.3d 517 (2006)." Olds and Bogart and the Foundation filed Motions for Joinder in Scenic Hawai'i's Motion for Attorneys' Fees and Costs. The Motion for Joinder filed by Olds and Bogart stated, in part, that
[i]n seeking to undo a private contract with [] Fagan, [ATDC] actually violated the public trust that resulted therefrom, and undermined the State's own parens patriae obligations. [Olds and Bogart] could not stand idly by. For [Olds and Bogart], and their family [F]oundation [], the Petition was nothing less than an attempt to impair contractual obligations owing to the Irwin Family, as well as a violation of the public trust. [9]
ATDC filed a Motion in Opposition to both motions for attorneys' fees on October 31, 2008.
The court filed its "Findings of Fact, Conclusions of Law, and Order" on November 3, 2008.[10] In its Findings of Fact, the court stated that Fagan's January 31, 1952 response to Godbold's request to withdraw the Restrictions and Conditions did not constitute a waiver of those Restrictions and Conditions. Rather, the court determined, Fagan's response constituted "an agreement to agree (to exchange a waiver for Hana land), not the waiver itself." The court went on to state that, "[t]he agreement into which [] Fagan agreed to enter, set forth in the January 31, 1952 language inserted by [] Fagan in her response to attorney Godbold's January 25, 1952 letter, was never consummated." In its Conclusions of Law, the court held, inter alia, that the restrictive covenants were still in effect.
10. For the foregoing reasons, this [c]ourt finds and concludes that the Restrictions [and] Conditions contained in the Indenture from [] Fagan to the Territory of Hawai'i dated November 7, 1930 . . . as well as in Executive Order No. 472 issued on March 13, 1931 . . . are still valid and remain in full force and effect. The Territory did not acquire any interest in [] Fagan's reversionary interest in the Property.
11. ATDC is not entitled to any relief pursuant to its Petition filed herein. The subject deed restriction shall not be expunged from Land Court Certificate of Title No. 310, 513. The Property is, and remains, subject to the restriction that it be used as a public park to beautify the entrance to Honolulu Harbor.
(Emphases added.) The court's Order de nied the Petition with prejudice and stated that, "[t]o the extent that recovery of attorney's fees and costs may be awardable under law, [r]espondents may . . . file a motion for attorney's fees and costs."
On November 5, 2008, Scenic Hawai'i filed a Reply Memorandum in Support of its Motion for Attorneys' Fees and Costs. At a hearing on November 10, 2008, the court requested supplemental briefing on the issue of attorneys' fees. On June 26, 2009, the court entered an Order Granting in Part and Denying in Part Scenic Hawai'i's Motion for Attorneys' Fees and Costs. The order stated, in part, that "Scenic Hawai'i has satisfied the three-prong test of the private attorney general doctrine" but that the reguest for fees was "denied without prejudice" to Scenic Hawai'i presenting billing entries for fees, rather than "block billing." (Emphasis in original.)
Scenic Hawai'i filed its "Renewed Motion for Attorney's Fees" (Renewed Motion) on December 23, 2009. ATDC opposed Scenic Hawai'i's Renewed Motion. On February 24, 2010, the court granted Scenic Hawai'i's Renewed Motion in the amount of $130, 674.09 for attorney's fees. On March 29, 2010, the court entered its Final Judgment in favor of Scenic Hawai'i in the total amount of $135, 637.69, which represented attorneys' fees and costs.
ATDC appealed to the ICA on April 28, 2010 and Scenic Hawai'i cross-appealed on May 12, 2010. On appeal, the ICA recognized three factors that must be considered in deciding whether to apply the private attorney general doctrine: "(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." Id. at 73, 293 P.3d at 146 (emphasis in original) (citing Sierra Club II, 120 Hawai'i at 218, 202 P.3d at 1263).
In connection with the first prong, the ICA held that "[t]he public policy advocated by Scenic Hawai'i ... had no connection to or impact on the factual dispute regarding whether Fagan had waived the deed restrictions or gifted the reversionary interest, " because the issues "concerned whether ATDC had demonstrated it was entitled to . . . expunge the deed restrictions on the Property[.]" Id.
Regarding the second prong, the ICA held that "Scenic Hawai'i did not serve , as the sole representative of the vindicated public interest.'" Id. at 75, 293 P.3d at 148 (quoting Waiahole II, 96 Hawai'i at 31, 25 P.3d at 806) (citations omitted). Thus, it was "unnecessary for Scenic Hawai'i to respond to ATDCs Petition, " so the court "need not consider the magnitude of the burden resulting from Scenic Hawai'i's intervention[.]" In re Honolulu Const., 129 Hawai'i at 75, 293 P.3d at 148. Finally, the ICA held that there was "no need to address" the third prong because Scenic Hawai'i failed to satisfy the first or second prong. Id. The court's March 29, 2010 Final Judgment was reversed as to its award of attorneys' fees and costs, but was "affirmed in all other respects."[11] Id.
In its Application, Scenic Hawai'i asks "[w]hether the [ICA] gravely erred in holding that the [] [c]ourt abused its discretion [in] awarding Scenic Hawai'i its attorneys' fees and costs under the Private Attorney General Doctrine []."
Scenic Hawai'i's Application essentially argues that the court did not abuse its discretion in granting fees, because Scenic Hawai'i did in fact meet all three prongs of the private attorney general doctrine. ATDC's April 3, 2013 Response argues that the ICA correctly applied the three prongs of the private attorney general doctrine pursuant to Hawai'i precedent, and that the ICA properly reviewed the award of attorneys' fees in holding that the court had abused its discretion.
Scenic Hawai'i filed a Reply with this court on April 10, 2013, stating, inter alia, that "[t]he City [] rode the coat-tails of Scenic Hawai'i [, ]" and that " [a] dditionally, even though [the court] ordered the State and the DLNR to appear, they took no active role." Thus, Scenic Hawai'i concludes, "the ICA mischaracteriz [ed] the ''vigorous' involvement of the other parties and the lack of any reason for Scenic Hawai'i to remain involved in the matter after [the other parties] joined."
In its Opening Brief to the ICA, ATDC challenged the application of the "abuse of discretion" standard to trial court determinations involving the private attorney general doctrine and argued in favor of de novo review. In its Response filed with this court, ATDC briefly reiterates this argument.
Sierra Club II could be construed as applying a de novo standard of review as to whether the plaintiff satisfied the private attorney general doctrine, and an abuse of discretion standard as to the monetary amounts that were awarded. See Sierra Club II, 120 Hawai'i at 220-30, 202 P.3d at 1265-75. Traditionally, however, an award of attorneys' fees and costs is reviewed for abuse of discretion. An abuse of discretion occurs "where the trial court has clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant." Maui Tomorrow, 110 Hawai'i at 242, 131 P.3d at 525 (citations and internal quotation marks omitted). Sierra Club II does also state that ", [t]he trial court's grant or denial of attorneys' fees and costs is reviewed under the abuse of discretion standard[, ]'" Sierra Club II, 120 Hawai'i at 197, 202 P.3d at 1242 (original brackets omitted) (citations omitted) (quoting Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Hawai'i 92, 105, 176 P.3d 91, 104 (2008)). We retain the abuse of discretion standard, noting however that we review de novo whether the trial court disregarded rules or principles of law that arise in deciding whether or not a party satisfies the three factors of the private attorney general doctrine.
As noted, the first criterion of the private attorney general doctrine is "the strength or societal importance of the public policy vindicated by the litigation[.]" Sierra Club II, 120 Hawai'i at 218, 202 P.3d at 1263 (citations omitted). Inasmuch as the court's ruling was integral to the future use of Irwin Park as a public park and historic site and ATDCs statutory grant of authority pursuant to Chapter § 206J, Scenic Hawai'i's intervention in the underlying action satisfies the first prong of the private attorney general doctrine.
In the instant case, the issues that arise with respect to the first prong appear to be twofold. Initially, there is a question of the "strength or societal importance of the public policy" advocated by Scenic Hawai'i. Sierra Club II, 120 Hawai'i at 218, 202 P.3d at 1263 (citations omitted). In its Application, Scenic Hawai'i characterizes the public policy it vindicated as both "preserving Irwin Park for all residents and visitors" and "holding ATDC and the State to its statutory duty to preserve [Irwin] Park for the public good, " specifically, the State's statutory duty to "retain the park , as a public park to beautify the entrance to Honolulu Harbor.'"
In Waiahole II, this court held that the first prong of the doctrine was satisfied because the case "involved constitutional rights of profound significance." 96 Hawai'i at 31, 25 P.3d at 806. In that case, the underlying action, In re Water Use Permit Applications, 94 Hawai'i 97, 9 P.3d 409 (2000) (Waiahole I), had established, inter alia, that in light of the mandate of Article XI, sections 1 and 7 of the Hawai'i Constitution, the State Water Code did not supplant or override the public trust doctrine in Hawai'i, and that ground water was included as part of the water resources trust. Id. at 131-35, 9 P.3d at 443-449.
This court's opinion in Waiahole II also quoted a long passage from the California Supreme Court's decision in Serrano, setting forth the policies underlying the doctrine. Waiahole II, 96 Hawai'i at 30, 25 P.3d at 805. It stated that the goal of the doctrine is to award attorneys' fees to "deserving interests" "''to the end that support may be provided for the representation of interests of similar character in future litigation.'" Id. (quoting Serrano, 569 P.3d at 1313-14). This court applied the doctrine in Sierra Club II, and concluded that the plaintiff had vindicated an important public policy where it "establish[ed] the principle of procedural standing in environmental law in Hawai'i 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.
Simply because this case relates to a discrete piece of property does not mean that Scenic Hawai'i has not advocated an important public policy. The preservation of public parks and historic sites in the State represents a significant public concern. See HRS § 6E-1 (2009) ("The Constitution of the State of Hawai'i recognizes the value of conserving and developing the historic and cultural property within the state for the public good."); HRS § 184-2(3) (2011) (providing for new parks and parkways to be established). Thus, Scenic Hawai'i's vindication of this public policy with respect to one particular public park and historic site, in this case, Irwin Park, would satisfy the first prong of the doctrine. Furthermore, the award of fees for the preservation of this particular park and historic site would further an ultimate goal of the private attorney general doctrine, as articulated in Waiahole II, "that support may be provided for the representation of interests of similar character in future litigation.'" 96 Hawai'i at 30, 25 P.3d at 805 (quoting Serrano, 569 P.3d at 1313-14).
The second issue with respect to this prong, however, is the question of whether Scenic Hawai'i in fact "vindicated" this important public policy through the underlying litigation. It was on this issue that the ICA made its determination that Scenic Hawai'i did not satisfy the first factor, holding, as noted, that the public policy advocated by Scenic Hawai'i had no connection to the factual dispute at issue in the underlying case. In re Honolulu Const., 129 Hawai'i at 74, 293 P.3d at 147. The ICA further held that "the [] [c]ourt's ruling on the Petition was only tangential to the ultimate disposition and future use of Irwin Park and did not include any determination as to whether ATDC's intended use was a violation of HRS § 206J-6 or in contravention of Hawai'i Historic Preservation Law, HRS Chapter 6E." Id. at 74-75, 293 P.3d at 147-48.
Respectfully, this interpretation of the first prong of the doctrine is too restrictive. Considering "the strength or societal importance of the public policy vindicated by the litigation, " Sierra Club II, 120 Hawai'i at 218, 202 P.3d at 1263 (citations omitted), requires that the litigation have vindicated a public policy, but does not require that the public policy be the subject of the litigation itself. Instead, an organization may seek to vindicate public policy through litigation on discrete issues, so long as the resolution of the litigation in favor of the organization vindicates a public policy goal, and that policy satisfies the first prong of the test. Black's Law Dictionary defines "vindicate, " in relevant part, as "[t]o assert, maintain, or affirm (one's interest) by action[, ]" as well as "[t]o defend (one's interest) against interference or encroachment[]." Black's Law Dictionary 1705 (9th ed. 2009). It is clear that, in intervening in the underlying action in the instant case, Scenic Hawai'i was "assert[ing], maintain[ing], or affirm[ing]" the important public policy goal of preserving public parks and historic sites. Id.
ATDC argues that public policy goals were not vindicated by the litigation because they were not the subject of the litigation. Under the facts of this case, it can hardly be said that "[a] public interest in preserving open spaces had nothing to do with the factual question of whether Mrs. Fagan had waived the deed restriction." Instead, as Scenic Hawai'i urges, "the Petition . . . directly and necessarily implicated the public policy issue of the preservation of Irwin Park." There was no other purpose to ATDC s Petition than to expunge the deed restriction requiring that the land be designated as a public park.
At the heart of the Petition was ATDC s attempt to abrogate the deed provision that required the Irwin Park property to remain a park. The effect of the expungement sought by ATDC would be to repeal the mandate in HRS § 206J-6(c) and to nullify the property's placement on the list of historic places. Therefore, to deny Scenic Hawai'i fees would be an overly-formalistic application of what it means to vindicate an important public policy. Scenic Hawai'i has thus satisfied the first criterion of the doctrine.
The second criterion of the doctrine considers "the necessity for private enforcement and the magnitude of the resultant burden on the plaintiff[.]" Sierra Club II, 120 Hawai'i at 218, 202 P.3d at 1263. In explaining Hawai'i's adoption of the doctrine, Waiahole II stated that:
"In the complex society in which we live it frequently occurs that citizens in great numbers and across a broad spectrum have interests in common. These, while of enormous significance to the society as a whole, do not involve the fortunes of a single individual to the extent necessary to encourage their private vindication in the courts. "
96 Hawai'i at 30, 25 P.3d at 802 (quoting Serrano, 569 P.2d at 1313). In Waiahole I, the plaintiffs contested a decision by the Commission on Water Resource Management in which it apportioned water rights "for various agricultural, leeward offstream, and nonagricultural uses, established a non-permitted ground water buffer, and denied various water use permits." Maui Tomorrow, 110 Hawai'i at 244, 131 P.3d at 527 (citing Waiahole I, 94 Hawai'i at 116-17, 9 P.2d at 428-29).
In Waiahole II, this court held that the action brought by plaintiffs in Waiahole I did not satisfy the second prong of the private attorney general doctrine because the plaintiffs did not "single-handedly challenge[] a previously established government law or policy, " but, rather, "challenged the decision of a tribunal in an adversarial proceeding not contesting any action or policy of the government." Waiahole II, 96 Hawai'i at 31-32, 25 P.3d at 806-07. The plaintiff "represented one of many competing public and private interests in an adversarial proceeding, " and thus was not the sole representative challenging an established governmental policy. Id.
In Maui Tomorrow, this court similarly held that the plaintiff s action could not satisfy the second prong of the doctrine. There, this court noted that the State had not abandoned or actively opposed the plaintiff's cause, but rather, that the Board of Land and Natural Resources "was under the impression, although erroneous, that the duty was to be carried out by another agency." 110 Hawai'i at 245, 131 P.3d at 528. Thus, in Maui Tomorrow, the agency did not abrogate its duty, but rather disagreed with the plaintiffs about which agency was required to satisfy that duty. Id.
In Sierra Club II, on the other hand, this court held that the plaintiff did satisfy this prong of the doctrine because it was necessary for the plaintiff to bring the action to enforce the duties owed by Department of Transportation (DOT) to the public under the Hawai'i Constitution. 120 Hawai'i at 220, 202 P.3d at 1265. Further, it held that Sierra Club and the other plaintiffs were "solely responsible for challenging the DOT's erroneous application of its responsibilities under HRS chapter 343." Id. This court distinguished the facts from Waiahole II and Maui Tomorrow by noting that in the underlying case, the DOT had not recognized its duty, and instead "wholly abandoned" that duty. Id. at 221, 202 P.3d at 1266.
The ICA held, as discussed, that Scenic Hawai'i could not satisfy this prong for two reasons. First, it held that there were "actual respondents [Olds, Bogart and the Foundation] who vigorously litigated their private interests." In re Honolulu Const., 129 Hawai'i at 75, 293 P.3d at 148. Second, it held that, "even if we assume that the public's interests were at issue in this case and the State did not represent the general public's interest in maintaining Irwin Park in its current form, it appears that the City' s intervention eliminated any need for ''private enforcement.'" Id. (emphasis added).
The private attorney general doctrine is an equitable rule. Sierra Club II, 120 Hawai'i at 218, 202 P.3d at 1263. As such, the court may grant attorneys' fees where equitable so long as the party requesting such fees satisfies the three prongs of the doctrine. It is not axiomatic that if a private party is named as a respondent or defendant in a particular litigation, an organization representing the public interest in the same litigation can never recover attorneys' fees pursuant to the private attorney general doctrine. Rather, a party representing the public interest along with other parties may still be "solely responsible" for advocating the public interest, see Sierra Club II, 120 Hawai'i at 220, 202 P.3d at 1265, despite the fact that private parties are named in the litigation.
In the instant case, Scenic Hawai'i alleges that at the time it intervened in the litigation, it was not evident that any other private or public entities would be advocating for the public interest. When Scenic Hawai'i moved to intervene, it was not clear if the private entities were in fact "vindicating]" the public interest in the courts. 96 Hawai'i at 31-32, 25 P.3d at 806-07. As part of its Supplemental Briefing in Support of Motion for Attorneys' Fees and Costs, filed on January 20, 2009, Scenic Hawai'i attached Declarations of Olds and Bogart. Bogart's Declaration stated that, "[u]ltimately we did not approve of the State of Hawaii's plans for Irwin Park, and we sided with Scenic Hawai'i in an effort to preserve Irwin Park as a park for the citizens of Honolulu." (Emphasis added.) It further stated that, "[b]ut for the efforts of Scenic Hawai'i and the other Preservation Organizations, we would not have been made aware of the significance of Irwin Park and its importance to the residents of Honolulu." (Emphasis added.) Olds' Declaration contained similar statements. The Declarations of Olds and Bogart state that each of them were also authorized to speak on behalf of the Foundation.
Moreover, at the time of Scenic Hawai'i's intervention in the suit, the government entity, ATDC, actively opposed Scenic Hawai'i's cause through its Petition. This is distinguishable from Maui Tomorrow, where, as noted, this court denied attorneys' fees in part on the premise that the Board of Land and Natural Resources had not wholly abandoned or actively opposed the plaintiff's cause. See 110 Hawai'i at 245, 131 P.3d at 528. As related, the State and DLNR responded to the court's Order to Show Cause by indicating their support of ATDC s filing of the Petition. Thus, the State and DLNR also opposed Scenic Hawai'i's cause once they joined in the litigation. The City had intervened in the suit as well and joined in the Motions to dismiss filed by Scenic Hawai'i and the Foundation's Motions to Dismiss the Petition to Expunge the Deed Restriction. But Scenic Hawai'i maintains that the City, to some extent, rode the coattails of Scenic Hawai'i after the City's intervention in the suit.[12]
At its hearing on March 27, 2009, the court heard arguments as to whether Scenic Hawai'i could satisfy the second prong of the doctrine. The court, taking into consideration the Olds and Bogart declarations, stated that it was inclined to award Scenic Hawai'i fees and costs from the beginning of its involvement in the suit until its "active participation was not necessary." At the time, the court deemed this to be "when respondents Olds and Bogart filed their answer contesting the [P]etition." As to Scenic Hawai'i's participation after the involvement of Olds and Bogart, the court stated that "[i]n light of such protection for the public interest, there was no necessity for [Scenic Hawai'i] to participate fully and actively in the opposition to the petition beyond a modicum of monitoring." Later, however, the court reconsidered this position, and concluded that Scenic Hawai'i was entitled to an award of all its "reasonable attorney's fees and costs."
There was a sound basis for the court's award of attorneys' fees and costs for Scenic Hawai'i's participation in the suit. Here, according to the signed declarations of Olds and Bogart, "[b]ut for the efforts of Scenic Hawai'i, " the private parties "may not have thus participated in this litigation." This does not imply that organizations or parties representing the public interest may always recover attorneys' fees if they become involved in a lawsuit prior to the active involvement of any other parties, thereby creating a race to intervene.
But here, according to the signed declarations of Olds and Bogart, it was Scenic Hawai'i that made them aware of the significance of Irwin Park. Scenic Hawai'i moved swiftly to intervene before Olds and Bogart answered the Petition. There was only a brief time between when the ATDC filed its Petition on May 15, 2001, and the date of the Order to Show Cause hearing, on June 18th, 2001, as noted by Scenic Hawai'i. Accordingly, had Scenic Hawai'i not moved to intervene, ATDC might very well have prevailed in the face of a lack of opposition, abrogating not only the legislative mandate that Irwin Park remain a park, see HRS § 206J-6(c), but also demolishing the park as a historic site. Under these circumstances, Scenic Hawai'i is entitled to attorneys' fees as awarded by the court, pursuant to the private attorney general doctrine.[13]
As to the third criterion, "the number of people standing to benefit from the decision, " Sierra Club II, 120 Hawai'i at 218, 202 P.3d at 1263 (citations omitted), this court has concluded that prong is satisfied where the plaintiffs had vindicated procedural rights related to environmental review. See Sierra Club v. Dept. of Transp., 115 Hawai'i 299, 304, 167 P.3d 292, 297 (2007) (Sierra Club I). In Waiahole II, this court recognized that the third prong of the doctrine is met where "all citizens of the state, present and future, stood to benefit from the decision." 96 Hawai'i at 31, 25 P.3d at 806 (citing Waiahole I_, 94 Hawai'i at 198, 9 P.3d at 510 (recognizing the "ultimate importance of these matters to the present and future generations of our state")).
To reiterate, in Sierra Club II, this court held that the underlying case provided a public benefit, because "it [was] 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 [would] benefit large numbers of people over long periods of time." 120 Hawai'i at 1266, 202 P.3d at 221. This court further pointed to the opinion in the underlying case, which stated explicitly that, "Ma]11 parties involved and society as a whole would have benefitted had the public been allowed to participate in the review process of the Superferry project, as was envisioned by the legislature when it enacted the Hawai'i Environmental Policy Act.'" Id. (quoting Sierra Club I, 115 Hawai'i at 304, 167 P.3d at 297).
Our case law on the private attorney general doctrine has not yet addressed a situation where the public policy involves a discrete property or historic site open to the general public. In this case, benefits would clearly accrue to residents and tourists who visit the Aloha Tower area through the continued preservation of Irwin Park. The court's Conclusions of Law in the underlying litigation support this view, stating that "[t]he Property is, and remains, subject to the restriction that it be used as a public park to beautify the entrance to Honolulu Harbor."
Scenic Hawai'i cites to Bitterroot River Protective Ass'n v. Bitterroot Conservation District, 251 P.3d 131 (Mont. 2011), a Montana Supreme Court case in support of its argument as to the third prong. In Bitterroot, the Montana court considered the same three factors in determining whether a group seeking declaration that a particular waterway was subject to the state's Natural Streambed and Land Preservation Act and Stream Access Law was entitled to attorneys' fees. 251 P.3d at 140. Bitterroot affirmed the district court's determination that the decision clarified not only the status of the waterway at issue in the underlying litigation, but also the status of other public waters in the state, and therefore the third prong was satisfied. Id.
As in the instant case, Bitterroot involved a discrete determination, rather than a direct challenge to a law or policy. See id. The Montana court reiterated the district court's statement that the case was of "statewide importance to all Montanans, " because "the decision clarified the status of other public waters in the state apart from the [public water at issue]." Id. Thus, inasmuch as the determination regarding one waterway had an impact on other waterways in the state, the Montana supreme court held that the third prong had been satisfied.
Scenic Hawai'i points to the precedential value of the litigation in this case in establishing that "the State and its agencies must abide by its obligations and statutory requirements . . . ." HRS § 206J-6 does prescribe statutory limitations on the powers of ATDC with respect to Irwin Park, which ATDC presumably attempted to bypass through its Petition. See HRS § 206J-6(c). As noted, by way of its Petition, ATDC sought to remove the reservations and conditions explicitly referenced in the statute. This litigation concerned a specific property, but the result vindicated the dedication of public parks and historic sites across the state. The continued applicability of the reservations and conditions from the Fagan Deed in the use of Irwin Park helps to ensure the viability of statutory controls set forth by the legislature on the use of property by public agencies or instrumentalities of the state, particularly when such controls involve a park or historic site. By opposing the Petition and involving the private parties in the suit, Scenic Hawai'i helped to set precedent that agencies may not easily subvert statutory limitations through indirect actions.
The number of people standing to benefit by the litigation is significant in terms of both the use of the park itself and the preservation of the park's historical significance. The underlying case addressed ATDC's efforts to remove a particular public park, but the litigation also prevented ATDC from altering a historic site and acting in contravention of HRS § 206J-6(c) and Fagan's donative intent.
This case has general precedential value for enforcing governmental adherence to the dedication of private land for public parks and as historic sites, and for the enforcement of the government's commitments to the preservation of such parks and historic sites. Cf. Kaleikini v. Yoshioka, No. SCAP-11-0000611, 2013 WL 1844892, at *9 (May 2, 2013) (holding that the third prong of the doctrine is met where, inter alia, the underlying litigation "ensured that historic preservation laws will be enforced as written."). These are the types of causes that have value to society as a whole, but which would not necessarily be vindicated by a single individual. See Sierra Club II, 120 Hawai'i at 219, 202 P.3d at 1264. Therefore, the third prong of the doctrine is satisfied in this case.
In conclusion, all three prongs of the private attorney general doctrine were satisfied. The ICA's January 18, 2013 judgment thus is reversed, and the court's Final Judgment entered on March 29, 2010 is affirmed.
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How do I remove the smoke smell from a mattress and garments that were in a house fire?
By cstaack from Columbus, NE
Two ways I know how to get rid of odors from fire.
1. Get a bowl of water and add white vinegar and let stay there without anyone in the room for a few hrs.
2. Put charcoal in the room in dishes, they use it here in Florida to get rid of musty odors.
I had a fire in my home this past year. I contacted a company on the internet BioWorld Products in Visalia, California. They have a odor eliminating product that removed all the smoke odor from my home. It worked absolutely great! I keep it on my shelf and use it for all kinds of odor when the need arises.
You will want to call a smoke and fire contractor. They rebuild after damage. You may not be able to get the smell out since it seeps into your wood, drywall and insulation. My friends just rebuilt after a small fire and they had to hire a professional smoke and fire contractor to remove all the smoke damaged parts of the house. Sorry.
Launder items using hot water, regular amount of detergent, and 1 cup each of white vinegar and baking soda. Repeat if any smoke smell remains. DO NOT dry until smoke smell is gone. This worked beautifully on my daughter's garments after her apartment complex had a fire. Most loads had to be run twice.
UM.... did you not pay attention in 5th grade science. Mixing baking soda and vinegar causes a reaction.
I know, why is it that people don't get that? Baking soda and vinegar foam up and neutralize each other, acid and alkaline. You get sodium acetate and carbon dioxide. Neither of which dies anything. Maybe they like the fizz and think it will fizz out the odor? This is like the club soda myth - it fizzes, it must be doing something.
yes, but the FIZZZZZ must have some magic effect just because it LOOKS like something is happening. Just stuff your clothes in a science project volcano, add baking soda and vinegar, and watch the smoke smell come fizzing out the top!!!
Have you tried charcoal to remove the smell from the house and clothing and books? Take the clothing and books and put in a large trash bag. Place the charcoal in there first and then tie the end of the bag shut.
How can I get the smoke smell out of our clothes and the smoke stains off after a small house fire?
By Danielle R.
Don't know if I can help, but two years ago my son had a fire in his house. Everything in the house was ruined from the smoke, but he had a favorite mattress he wouldn't through away. We keep it in our work shop til he could decide what to do with it. Thinking it was completely ruined, and because it was smelling up the shop, I decided to try ammonia (I had read about it somewhere) so I filled a pie pan full and left it on the floor near the mattress till it evaporated, it took a few days but slowly the smoke smell went away. The mattress was able to be used again and there is not a trace of smell left in it.
Vinegar will also take the smoke odor out of clothes and mattress. Use the vinegar in the laundry by adding a cup to the wash cycle, repeat as needed until the smoke smell is gone. Make up a half water-half vinegar solution, dampen a washcloth or hand towel in the solution and wipe down the mattress. Should take the smell out but again, you may have to repeat.
They have Pure Air Candles, I guess they, are really good for smoke, also, activated charcoal is good for odor too, takes care of pet smell, and you get it at, pet supplies stores. Good Luck. Regina
We had a mattress fire and some burn damage to the floor. There is no soot, but a smoke odor is there. The ceilings are textured white. What do I use to deodorize and get rid of the smoke odor permanently? I know I have to clean everything, but am not sure where to look for products or what to ask for. Thanks for any help. We have no insurance, so I am doing this myself! Thanks again.
By Sybil
Even though you don't have insurance you could still call around to your local insurance companies to see what companies they use for fire/smoke cleanup. Then give those companies a call and I am sure they would be happy to give you some suggestions of what is the best thing to do and safest products to use.
Vinegar will really help you get rid of the smoke stench and it is incredibly cheap. Mix it strong at one-to-one to create a washing solution for the floors, walls, light fixtures, switch plates, etc. Don't rinse it off as the vinegar smell will dissipate within a few hours taking the smoke odor with it. You may have to repeat the process once or twice depending on how long the surfaces were exposed to smoke.
You can also dampen a tea towel in full strength vinegar and wave it around the room, and set out shallow bowls of it full strength to deodorize the rooms.
Some of my house plants survived a major fire. I literally washed them with FIT and removed all old dirt to wash away the fire retardant and ash, etc. I repotted them in new pots with new potting soil, but they still smell like smoke. Any suggestions? They are temporarily in a new, smoke free location so it's not anything else, but the plants themselves that smell.
Plants are living things, of course, and perhaps their tissues have absorbed the smoke smell. If they were mine, and the weather was good, I'd put them outside and let them grow there for awhile. I think that if you just let them grow for some time, this smoke smell will go away.
I have porcelain, glass, and wood items that are heavily smoke damaged due to a house fire. Many of these pieces are antiques and collectibles that I'd like to preserve as they belonged to my mother, who perished in the fire. What should I use on these different surfaces? Thank you very much!
By Patti from Everson, WA
I have a large lovely picture that has smoke damage the paint is acrylic paint, I am afraid I will wreak it but I really want to clean it so can hang it back up.
First off, no one noticed or wanted to mention that your mom perished in the fire. I am so very sorry to hear that you lost her. Of course the things she left are doubly precious.
That said, TSP or Tri Sodium Phosphate is the one thing that will absolutly get them clean. It is especially formulated for nicotine and smoking damage to walls, windows, and items that are in the home of smokers. I hope this helps.
Please know that we will keep you in our hearts. I am sure it was because of the loss that no one wanted to mention it. We are a kind and generous bunch so know that if you are new to us.
Poor But Proud
My sincere condolences to you and your family. I can completely understand your need to restore these things to their original beauty.
I deal in antiques, in particular porcelain, china and glassware. There is no universal product or method to cleaning/restoring these types of pieces. There were/are so many methods used in the production of vintage and antique wares that great care must be taken - what will work fine for one piece, can destroy the next. For clear glass or crystal, whether cut or uncut, fill your sink with warm water and liquid dish soap just as if you were going to wash your regular dishes. To this add about 1/2 to 1 cup of vinegar (be generous). Wash the crystal using a soft toothbrush to gently scrub in any cuts in the glass. If there is still residue remaining, dip your wet cloth into some baking soda and use it to gently "scrub" the piece. Baking soda is a mild abrasive and does a nice job of cleaning tough residue and it doesn't take a lot of elbow grease. Finally, rinse the item well in warm water and dry with a soft cloth right away. I've always used this technique and have had success cleaning some pretty tough pieces. You'll be amazed at how they will sparkle!
In the interest of not turning this post into a book, please feel free to contact me about cleaning any other types of items. Once I know what they are I can better help you go about it.
Take care!
How do you get smoke out of books after being in a house fire? The books are really old.
By Jeanette
This works for books that smell of cigarette smoke so it may also work for house fire smoke. Put about a cup of baking soda in a large paper bag, place 2-3 books in the bag and close it tightly. Leave for three days or so then "test" to see if the smell is gone. Hope this works for you. Good luck!
I acquired a brand new cuddle chair which had been stored in a warehouse that had a fire. It really smells of smoke! I've tried Febreze, and air fresheners to no avail. Does anyone have any tips to get rid of the smokey smell please?
By Linzi
Febreeze and air fresheners are only temporary fixes. If Febreeze did improve the chair, the company claims only a 30 day or so change. This limits any future liability.
I searched online and found many suggestions and companies offering their miracles. You may be lucky and find a good solution, however, most people give up after a few tries and dump the smokey item.
Caveat Emptor!


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Support Migdal Ohr by purchasing letters in the Torah Scroll that will be written in honor of Rabbi Grossman's 70th Birthday.
Posted on: July 7th, 2016Judaism → Parsha → The 10 Minute Parsha
We've seen Israel complain over and over, but never before have they tried to undermine and dispose of their leaders. Join us as we make sense of Korach's shocking complaints, this week on the Parsha Experiment. This video is from Rabbi David Block and Immanuel Shalev. Want More? Join our growing community: https://goo.gl/xv0UbG Help […]
Posted on: July 7th, 2016Judaism → Parsha
I definitely don't want even those who hurt me to be swallowed up by the earth, but I do wish a different place for them, just enough displacement for them to able to objectively look at themselves.
Posted on: July 3rd, 2016Judaism → Columns → Rabbi Dr. Nathan Lopes Cardozo
Originally, Judaism was highly unorthodox. While it always believed in God and Torah, it never offered any specifics of what God meant or what Torah consisted of.
Posted on: July 1st, 2016Judaism → Parsha
The "enemy" has a mind of its own.
Posted on: July 1st, 2016Judaism → Columns → Chodesh Tov/Rabbi Hanoch Teller
Mitchell Geller was inducted as a Jewish chaplain; a rabbi and a beard go hand in hand. To tell a rabbi to take off his beard would be akin to telling a Catholic Father to remove his collar.
Posted on: July 1st, 2016Judaism → Parsha → The 10 Minute Parsha
How could the spies have doubted God? How could they have sinned so egregiously?
Posted on: July 1st, 2016Judaism → Parsha
There were far too many consequences of their rejection of "super" vision, and they understood the price of choosing to not see, epitomized by the spies "not seeing" their destiny in Israel.
Posted on: June 30th, 2016Judaism → Weekly Luach
Posted on: June 30th, 2016Judaism → Parsha
Clearly, they were lacking in bitachon. Their faith in Hashem was deficient. But they weren't guilty of speaking lashon hara.
Posted on: June 30th, 2016Judaism → Ask the Rabbi
Question: I am very appreciative and, if I might add, flattered that you answer and publish many of my questions. Due to your superior knowledge, I am always confident when I send in a question that I will receive a proper response. I wonder if you could address whether one should say Birkat HaGomel after flying even though flying is statistically safer than driving. Also, do women say HaGomel as well or only men? Menachem
Posted on: June 30th, 2016Judaism → Halacha & Hashkafa
A Matter of Anticipation 'A Stone Flew From His Hand, And Another Put Out His Head From A Window …' (Bava Kamma 33a)
Posted on: June 30th, 2016Judaism → Parsha
If that is the case, though – if a mechallel Shabbos is toned because he is like one who is ovdei avodah zarah – why, Rav Akiva Eiger asks, is a person who desecrates Shabbos in private stoned?
Posted on: June 30th, 2016Judaism → Halacha & Hashkafa
When an illegal act incurs corporal punishment or lashes (malkot) and monetary liability, the rule of kam lei also applies.
Posted on: June 30th, 2016Judaism → Columns → Lessons In Emunah
We were fortunate enough to have our brother-in-law, sister-in-law and their children fly out from the east coast and join us for one such summer expedition. And it subsequently turned out to be by far the most memorable of all.
Posted on: June 30th, 2016Judaism → Halacha & Hashkafa
After Mr. Weiser left, Mr. Lander opened the envelope. He counted the money and found $600. There were five one-hundred dollar bills and five twenties. "That's strange," Mr. Lander said. "He only owed $480."
Posted on: June 30th, 2016Judaism → Rebbetzin's Viewpoint
Since our faith teaches that every person has a soul mate – bashert – designated by Heaven, how is it that so many cannot find their partners?
Posted on: June 30th, 2016Judaism → Columns → Rabbi Lord Jonathan Sacks
Despite the Divine anger, the people were not condemned to permanent exile. They simply had to face the fact that their children would achieve what they themselves were not ready for.
Posted on: June 29th, 2016Judaism → Parsha → Redeeming Relevance / Rabbi Francis Nataf
The incident of the spies was a completely new and problematic transgression, it was not toward the rarified wilderness, but rather toward the earthly existence promised in the Land of Israel.
Posted on: June 26th, 2016Judaism → Columns → Rabbi Dr. Nathan Lopes Cardozo
My suggestion: Restore the Kotel to its former state, a place where all are welcome and used solely for individual prayer and meditation, just as our ancestors treated it throughout our long history.
Posted on: June 24th, 2016Judaism → Parsha
No matter how bleak things seem to be, Hashem never give up on us.
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March 5, 2012
N.S., PLAINTIFF-RESPONDENT,v.S.S., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket Nos. FM-04-845-08 and FV-04-1421-11.
Submitted December 7, 2011
Before Judges Lihotz and St. John.
In these consolidated appeals, we are asked to examine two Family Part orders. The first, entered at the conclusion of a six-day bench trial, permitted plaintiff to move to the State of Florida while retaining physical custody of the parties' child and modified the provisions of their Final Judgment of Divorce (FJOD), which had awarded joint legal custody, and adjusted defendant's parenting time (the removal case). The second resulted after a summary proceeding and granted plaintiff's request for entry of a final restraining order (FRO) pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35 (the DV case).
On appeal, defendant raises issues for our review in each of these matters. Regarding the removal case, he challenges the trial court's review of the evidence, arguing the judge failed to consider evidence of the unfitness of plaintiff's mother who will be living with the child, and erroneously denied his evidence on alternative parenting plans. Defendant also argues the court erred in its application of the law. In the DV case, defendant suggests the evidence presented by plaintiff was insufficient to prove harassment, requiring reversal of the FRO.
Following our review of the arguments presented, in light of the record and applicable law, we affirm both Family Part orders. For clarity, we will provide the facts applicable to both cases, then provide a separate discussion of the issues under review.
Plaintiff N.S. and defendant S.S. were married on April 26, 2006, and divorced by the FJOD filed on July 14, 2008. The parties have one child M.S., who is currently four years old. In the property settlement agreement (PSA) incorporated into the FJOD, the parties agreed they would share joint legal custody of M.S. Plaintiff was designated as the parent of primary residence and defendant was designated as the parent of alternate residence.*fn1 Plaintiff cared for M.S. five days and four nights each week, and defendant provided care for the remaining two days, three nights. The PSA provided neither party could remove M.S. from New Jersey for a five-year period from the date of its execution.
Plaintiff, while working as a counselor, was sexually assaulted. She was diagnosed with Post Traumatic Stress Disorder (PTSD) and awarded approximately $900.00 per month in Social Security Disability (SSD), along with a $400.00 monthly award for M.S. At the time of the hearing, defendant paid child support of $170.00 per week, which was reduced on October 29, 2010 to $73.00 per week. Defendant, a Camden City Police Officer, had been suspended from his employment without pay in April 2010.*fn2 As a result of the suspension, defendant moved for a reduction in his child support and daycare obligations; plaintiff filed a cross-motion seeking to remove M.S. to the Tampa, Florida area.
A plenary hearing on the removal case was ordered. The matter was tried on six days between September 3 and October 13, 2010, before Judge Angelo DiCamillo. During the hearing, the parties were the principal witnesses, with additional witnesses testifying regarding very discrete facts.
Plaintiff explained her reasons for moving to Florida. Primarily, she asserted Florida would be a less expensive place to live, she would find professional employment, and she would be surrounded by a family support system. More specifically, plaintiff and M.S. would be living with her mother, who was not going to require payment of rent, food, or child care. Also, plaintiff believed employment opportunities were superior for her in Florida. She earned an Associate's degree in nursing, but had difficulty finding work in New Jersey, discovering hospitals, where the bulk of openings existed, required a Bachelor's degree in the field, while in Florida, hospitals accepted nurses with the two-year Associate's degrees. She would also receive benefits with her employment, including much needed health care, which was lost when defendant was fired. Plaintiff also noted that pending securing a full-time job, she was offered a part-time position as a property manager working for her uncle, who agreed to pay her $1,100.00 per month.
Also, plaintiff discussed the non-financial reasons for the move. Foremost was plaintiff's large support system comprised of relatives who lived within two miles of one another in the Tampa area, including her mother, brothers, nieces, nephews, and cousins. Plaintiff and M.S. would be surrounded by family, who would buoy them emotionally and help with logistics. Also significant was plaintiff's certainty the geographic distance would abate the continued tension and hostilities between her and defendant. In this regard, she related text messages and a letter authored by defendant displaying verbal assaults, including threats to inform her professors, the dean, and other college administrators she was "bipolar and schizophrenic." She discussed another incident when defendant entered campus to pass out her "mug shot," taken during the arrest he initiated based on false information. Plaintiff was confident, were she to live in Florida, defendant would be less able to interfere with her employment efforts and disrupt her life.
Defendant objected to the move as it would render meaningless the parties' co-parenting agreement, which had not yet been in place for five years. He refuted plaintiff's claim of available family support, testifying plaintiff's mother was an "unsuitable caregiver" for M.S. He repeated plaintiff's past statements relating instances of physical abuse by her mother, including beatings and disparaging comments, because her mother favored male children. Defendant additionally contended plaintiff's mother was an alcoholic and was promiscuous, testifying he saw her drunk many times at parties and plaintiff told him as a young child her mother would take her to a home where she engaged in a sexual liaison.
Defendant noted the parties had successfully co-parented M.S. and none of their difficulties centered on denying access to the child. Further, despite plaintiff's continued allegations, no final domestic violence restraining order was ever entered by the court. Defendant demonstrated his awareness of the child's pre-school routine and her past medical needs.
Defendant also objected to the distance and exorbitant transportation expenses related to effectuating visitation if M.S. resided in Florida. He questioned the safety of a young child flying alone and suggested M.S. would need a travel companion for several years.
After the conclusion of the hearing, but before a determination was rendered by the trial judge, plaintiff filed a complaint pursuant to the PDVA, and a temporary restraining order (TRO) was entered. That order also temporarily suspended defendant's parenting time.
On November 19, 2010, Judge DiCamillo entered his written opinion in the removal case. Applying the test set forth in Baures v. Lewis, 167 N.J. 91, 118 (2001), Judge DiCamillo credited plaintiff's testimony explaining the basis of her decision to move. He then analyzed plaintiff's reasons for the move; defendant's claims in opposition; the parties' past interactions impacting their positions supporting or opposing the move; whether the educational, health, and leisure opportunities available to M.S. in New Jersey were available in Florida; whether a meaningful visitation and communication schedule could be developed allowing defendant to maintain a full and continuous relationship with M.S.; the likelihood plaintiff will continue to foster M.S.'s relationship with defendant; whether extended family relationships in New Jersey or Florida were impacted by the move; and whether defendant had the ability to relocate.
The court also considered the competing parenting plan proposals submitted by the parties. Judge DiCamillo rejected defendant's submission as an attempt to change the custodial agreement to achieve "a 50/50 shared physical custodial relationship[.]" He also noted plaintiff's proposal actually increased defendant's parenting time with M.S.
In weighing the facts supporting these factors, the trial judge found defendant had failed to offer adequate opposition to plaintiff's reasons to move and provided no "reasons sufficient to defeat plaintiff's application for removal." The trial judge concluded "[p]laintiff ha[d] a good faith reason for the move, and the move w[ould] not be inimical to the child's interest." The court granted the removal request and entered a new parenting plan.
On December 2, 2010, Judge John T. Kelley presided over the domestic violence hearing, initiated by plaintiff's complaint. Plaintiff and defendant gave their accounts of the incident and the arresting police officer also testified.
Judge Kelley made detailed factual findings on the record, including credibility assessments in finding defendant committed an act of domestic violence, premised on the predicate act of criminal harassment. He rejected plaintiff's additional claim defendant committed an act of stalking, N.J.S.A. 2C:12-10, as there was no evidence of repeated conduct. A FRO was entered.
Defendant's separate appeals of these two orders followed. We granted defendant's motion to consolidate the two matters.
The "standard of review of a trial court's factual findings and conclusions of law is well-settled." L.M.F. v. J.A.F., Jr., 421 N.J. Super. 523, 533 (App. Div. 2011). "'[A] reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record.'" MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)), stay denied, 551 U.S. 1177, 128 S. Ct. 7, 168 L. Ed. 2d 784 (2007). "We will not disturb the 'factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]'" L.M.F., supra, 421 N.J. Super. at 533 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
Even "where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts" and their implications, and thus "the traditional scope of review is expanded," we will nonetheless accord deference to the trial court's findings unless they "went so wide of the mark that a mistake must have been made." [MacKinnon, supra, 191 N.J. at 254 (quoting M.M., supra, 189 N.J. at 279).]
We turn to defendant's arguments on appeal. Our discussion separates the issues raised in the individual matters.
Following a divorce, removal of children from the State of New Jersey is governed by N.J.S.A. 9:2-2, which provides:
When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order.
"The clear purpose of N.J.S.A. 9:2-2 is to preserve the rights of the [non-custodial] parent and the child to maintain and develop their familial relationship where the custodial parent proposes to remove the child to another jurisdiction." Schulze v. Morris, 361 N.J. Super. 419, 425 (App. Div. 2003). In most cases, an out-of-state move affects the relationship between the child and non-custodial parent. By far, these decisions are among the most difficult ones posed to Family Part judges.
"Inevitably, upon objection by a non-custodial parent, there is a clash between the custodial parent's interest in self-determination and the non-custodial parent's interest in the companionship of the child. There is rarely an easy answer or even an entirely satisfactory one when a non-custodial parent objects. If the removal is denied, the custodial parent may be embittered by the assault on his or her autonomy. If it is granted, the non-custodial parent may live with the abiding belief that his or her connection to the child has been lost forever." [Morgan v. Morgan, 205 N.J. 50, 54 (2011) (quoting Baures, supra, 167 N.J. at 97).]
The party seeking to relocate with a child "ultimately bears a two-pronged burden of proving a good faith reason for the move and that the child will not suffer from it." Baures, supra, 167 N.J. at 118. Defendant's appeal does not challenge the trial court's finding that plaintiff properly established a good faith reason for the move. Rather, he emphasizes the adverse effects upon M.S., concentrating on the alleged unfitness of plaintiff's mother, whose presence in the household would subject M.S. to an "unhealthy environment." Defendant argues the court abused its discretion in weighing the facts and in denying, as inadmissible, video tape evidence purportedly showing plaintiff's mother intoxicated and being promiscuous. We reject these contentions.
The court noted the recording was made prior to M.S.'s birth and defendant had not previously provided the evidence during discovery. Despite that lapse, the trial judge did not deny its admission; he conditioned it upon presentation of expert testimony laying a foundation that the video supported defendant's claims the grandmother's demonstrated conduct at a party would adversely impact her ability to properly care for M.S. Defendant declined to comply as directed.
The factual findings undergirding the trial court's decision are amply supported by adequate, substantial and credible evidence found in the record, MacKinnon, supra, 191 N.J. at 253-54, and the trial court correctly applied the law to these facts. We affirm the order for removal substantially for the reasons set forth in Judge DiCamillo's eighteen-page written opinion. R. 2:11-3(e)(1)(A).
We turn to defendant's appeal from the FRO in the domestic violence case. The trial judge found defendant's actions of following plaintiff from the police department after a custody exchange, parking behind a dumpster outside plaintiff's apartment, and when he saw plaintiff he exited his vehicle and began walking towards her, were designed to alarm and annoy her. In doing so, Judge Kelley rejected as incredible defendant's claim he was not there to interact with plaintiff, but was trying to determine where his older children's babysitter lived. It was noted defendant's presence within 500 feet of plaintiff violated a bail condition, placed pending his official misconduct charge trial. Defendant argues plaintiff's evidence was insufficient to prove by a preponderance of the evidence that he was guilty of harassment. We disagree.
"Although in the realm of domestic abuse, harassment is arguably the least egregious of the offenses recognized by the Legislature as a ground for obtaining relief under the [PDVA], 'there is no such thing as an act of domestic violence that is not serious.'" L.M.F., supra, 421 N.J. Super. at 535 (quoting Brennan v. Orban, 145 N.J. 282, 298 (1996)). "When determining whether the harassment statute has been violated, courts must consider the totality of the circumstances, in light of the parties' history." E.M.B. v. R.F.B., 419 N.J. Super. 177, 183 (App. Div. 2011) (internal quotation marks and citations omitted). "That determination must be made on a case-by-case basis." State v. Hoffman, 149 N.J. 564, 581 (1997), certif. denied, 199 N.J. 515 (2009).
A person commits harassment pursuant to N.J.S.A. 2C:33-4 if, with purpose to harass another, he:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
Here, the trial court focused on N.J.S.A. 2C:33-4c, finding defendant's conduct satisfied each element of the statute because defendant engaged in a course of alarming conduct with the purpose to alarm plaintiff. The New Jersey Supreme Court has explained, "[i]n interpreting subsection c., which refers to 'serious' annoyance or alarm, . . . the phrase means 'to weary, worry, trouble or offend.'" J.D. v. M.D.F., 207 N.J. 458, 478 (2011) (quoting Hoffman, supra, 149 N.J. at 581).
Judge Kelley entered these findings and conclusions:
In this case[,] I do find that acts of harassment occurred. Frankly, it makes no sense for [defendant] to be at this residence. As I understand the testimony[, defendant] knew [where plaintiff resided]. Why he would go there, why he would park his car there, serves . . . no purpose. And I would find as a fact that it is alarming conduct to engage in that kind of activity. Obviously the situation has become very, very difficult for each of the parties. But the fact that he went there and I . . . cannot find his testimony credible that he went there that night to . . . drive around absentmindedly looking for this babysitter[.]
. . . It would serve no purpose for him to drive to [plaintiff's apartment complex] that night other than to engage in the course of alarming conduct. And I do find that the predicate act of harassment has been established.
In this case[,] there has been substantial testimony about prior acts of domestic violence that occurred between these parties. I am satisfied that there is a long history of domestic violence. I am satisfied that there had been a history, based upon the testimony of the plaintiff, a history of [TRO]s obtained by both of the parties. But clearly there is a history of domestic violence and the statute, as the statute is named, is designed to prevent domestic violence. And the only way domestic violence can be prevented is to direct that there be[] no contact between the parties.
. . . I am required to make a determination [i]f the elements of harassment were established and I do find they were established. I also find . . . the testimony of [plaintiff] credible to the extent that she went out, that there was no reason for [defendant] to be sitting there, [and] he was not 500 feet away, rather he was in an area, even accepting his diagram where the car was parked, that it was clearly in a position where he could observe the apartment of [plaintiff]. This occurred at night. There was no reason for him to be there other than to engage in a course of alarming conduct. And the only way the [c]court could be assured there would be no further acts of domestic violence between the parties, is to issue the [FRO]. Accordingly, I feel constrained to issue the [FRO] at this time.
We defer to these findings, including the trial judge's credibility determinations based on his "feel of the case," having had the opportunity to see and hear the witnesses' conflicting testimony. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). We will not disturb the FRO.
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Paris is burning - and only Private's Jack Morgan can put out the fire.
When Jack Morgan stops by Private's Paris office, he envisions a quick hello during an otherwise relaxing trip filled with fine food and sightseeing. But Jack is quickly pressed into duty after a call from his client, Sherman Wilkerson, asking Jack to track down his young granddaughter, who is on the run from a brutal drug dealer.
Before Jack can locate her, several members of France's cultural elite are found dead - murdered in stunning, symbolic fashion. The only link between the crimes is a mysterious graffiti tag. As religious and ethnic tensions simmer in the City of Lights, only Jack and his Private team can connect the dots before the smoldering powder keg explodes.
©2016 James Patterson and Mark Sullivan (P)2016 Hachette Audio
"Could've been an entertaining few hours..."
I didn't purchase this book thinking it was fine literature. I bought this book for the same reason I sometimes hangout in drugstores and buy cheap makeup...its a mindless way to spend time and enjoy myself. I would say 'mission accomplished' except that I had to force myself to finish this, while trying not to gag over the performance!
Unlike other reviewers, I actually loved Mark Sullivan's French accents! And not a little because when he spoke in female voices, or foreign voices he spoke like a normal human being. When the performance called for an english speaking male or ESPECIALLY when it turned to describing the thoughts of Major Sauvage...Mr. Sullivan turned on this nauseating, cheesy 'movie trailer' voice! You know the one...breathy, raspy growl stretched out at the end of every sentence. At first I thought, "They're kidding, right? Maybe this is going to turn out to be a soap opera on the television?" No, not kidding.
And there were moments where some added, cheesy background music just made it SO difficult to enjoy.
I almost returned it several times.
"Unbelievable...horrible listen...waste of a credit"
Fragmented story line.....who, where, what too complicated to figure out.....no continuity....the french accent at times difficult to understand.....waste of a credit
"Disappointing for a Patterson novel"
Having heard or read ( mostly audible) nearly all Patterson novels, I was disappointed with the Private Paris selection. I had enjoyed the original "Private" and one other, I, plus others w/ the same main character, I expected a great story line. This one was multiplex, jumbled, ebbing and flowing, and inconsistent as a comparison novel and theme. It seemed as if the writer/ writers had become bored with the story line(s) but felt that it still needed to b a certain length for pages or tape! I became more bored than it seemed that they did!
I haven't given up , at all, on Patterson et al, but I doubt I'll pick another "Private...." One. There are too many good adventure, spy, thriller audiobooks out there by my favorite writers. And, then, it also seems that Patterson is churning out nearly one new story a month--- whether full length or these new 'mini-books'. Maybe Private Paris should have been a MINI story: Private Mini-Paris !
I have never been disappointed with a James Patterson book, live the music and the story.
"Best Private Yet!"
I have read all the books in the Private series and enjoyed them all. However, Private Paris is as good as the first book in the series. For starters it features Jack Morgan as the main character. I have missed Jack lately as he has only appeared as a minor character in many of the recent Private books. Also, I didn't figure out the motives of the terrorists and enjoyed the surprise. In addition, I loved that Jack met someone that captured his attention and didn't spend the book moping around regretting his relationship with Jessica didn't work out. That was a recurring theme that was getting annoying; so hopefully he has moved on.
"Loved all OTHER Private novels"
Characters were undeveloped, didn't really care what happened to them--descriptors didn't tie me in or allow me to "see" actually sending it back, which I never do!
"It's just Ridiculous"
The plot was ridiculous, the situation in the real world is very serious. This novel takes advantage of a horrible situation. If I could give zero stars I would.
I love mystery books, this is not a mystery but a political statement. The only turn off I have is with James Patterson. I will NEVER bother with another of his books.
Have not heard Jay Snyder before. He did a good job with the material he was given.
The performance.
"Another good book !!!"
Loved it!! This stays true to the series and makes you am want to visit Paris!!
This audible book was very good! Not as many mini stories going on at the same time though. I loved the setting - Paris, and the main characters, and the storyline. However, at times I forgot where I was in the story.. So maybe a bit difficult to follow then some of his previous "Private" series. On the whole, a good listen.
"A bit complicated"
I also enjoy Jack Morgan's adventures. He was solo without much of his team in this one. I missed the rest of hem
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