The nearly $70,000 awarded to the Honolulu Star-Advertiser for attorney fees and costs for prevailing in its lawsuit seeking the release of the names of judicial finalists from Gov. Neil Abercrombie should be reduced, state lawyers said in an appeal of the award.
The amount is "unreasonable" and should be "substantially" lowered, state lawyers said in their opening brief.
In his order issued in June, Circuit Judge Karl Sakamoto granted the newspaper $67,849 in fees and $1,777 in costs.
Sakamoto said the time spent by newspaper lawyers was "reasonable" in view of the "novel and complex issues presented by the case and the extensive research it entailed."
He had ruled in November that the governor, under the state open-records law, had to make public the names of judicial candidates submitted to him by the state Judicial Selection Commission.
The attorney general’s office did not appeal the November ruling, but is challenging the amount of Sakamoto’s award.
In its brief to the Hawaii Intermediate Court of Appeals, state lawyers said the challenge involves the number of hours the newspaper’s lawyers spent on the appeal and $564 in photocopying fees.
They said Sakamoto was not given enough information to determine the reasonableness of the attorney hours and photocopying fees.
"In a notable number of instances, the hours the Star Advertiser’s counsel spent on the case were excessive, unproductive or unnecessarily spent," the state lawyers said. "Evidence necessary to support the costs claimed and the award was not presented."
The brief did not provide a figure as to how much the award should be reduced, but it acknowledged that state lawyers said in the trial proceedings that "reasonable" fees and costs should have been about $30,000.
Star-Advertiser lawyers have maintained that the appeal is a waste of time and more public money.
The dispute involves about $40,000 — the difference between Sakamoto’s award and the amount the state has acknowledged is reasonable.
The newspaper lawyers have said if the decision is upheld, the Star-Advertiser would contend that under state law it would be entitled to the additional fees and costs spent in the appeal.
The attorney general’s office said when it moved to appeal the case that it believed the award was not reasonable and that it wanted to "safeguard the public’s money."
Joshua Wisch, the office spokesman, said Friday the office will provide information about how much the appeal is costing the state, but he said it would need a few days to get the information.
Star-Advertiser attorney Diane Hastert said it’s too early to estimate the newspaper’s fees and costs for the appeal.
"The governor essentially forced the Star-Advertiser to sue and now complains about statutory attorneys’ fees incurred when he lost," she said in an email.
"We don’t anticipate it taking too much time to oppose the governor’s appellate brief, but we do believe this appeal is a waste of the taxpayers money."
The 23-page opening brief was signed by Deputy Attorney General Charleen Aina and filed Oct. 9, a day after the appeal court’s deadline for the brief.
Aina also filed a request that the court still consider the brief. She said she was in Ireland and that she ran into problems arranging for the briefs to be filed electronically with the court.
Aina said she acknowledges the problem could have been avoided if she had completed and filed the brief before she left for Ireland, but said her schedule did not permit her to do that.
The appeals court granted Aina’s request Monday to consider the brief.
The Star-Advertiser will file a response defending Sakamoto’s award.
It is up to the appeals court to decide when to rule.
