How Do You Solve A Problem Like ... Appellate Mootness? More Process!

by Robert Thomas, InverseCondemnation, February 20, 2014

The Hawaii Supreme Court has been on a roll lately, giving us a series of decisions clarifying appellate procedure. So in the past couple of months, we've got cases about appealability, dismissing appeals for a brief not conforming to the rules, and what is a final appealable order. Good stuff for those of us who practice a lot in the appellate courts.

Here's the latest (and bonus for us, it's a land use case). It addresses what remedy should be applied by a court of appeals when a case becomes moot while on appeal, and what a court should do with the appealed-from judgment: leave it in place even though it has been rendered academic, or vacate it and wipe it off the books as if it never existed at all?

The court framed the issue and its conclusion in Goo v. Arakawa, No. SCWC-30142 (Feb. 19, 2014) as follows:

This case addresses the issue of the procedure that an appellate court should follow when a case becomes moot on appeal and one party seeks vacatur of the lower court’s judgment.

We hold that the Intermediate Court of Appeals (ICA) erred in vacating the circuit court’s judgments and December 31, 2008 Order Granting Partial Summary Judgment in this case and remanding the case for dismissal. In addition, we conclude that the ICA did not err in affirming the circuit court’s denial of plaintiffs’ request for attorneys’ fees.

Slip op. at 1-2. To set up the appellate remedy question will take a bit of a backstory, but please bear with us.

The issue in the litigation was a height limitation in Maui County's zoning code. The County's Comprehensize Zoning Ordinance established a height limit on structures, which provided, "[n]o building shall exceed two stories nor thirty feet in height." The CZO defined "height" as being measured from "finished grade." After the entitlement process for a proposed development was underway, the county council adopted a new definition of "building height," which under the new ordinance was measured from "natural or finish grade, whichever is lower." The County Department of Public Works preliminarily approved the owner's development plans and issued a grading and grubbing permit, measuring the height of the proposed structures without considering that the development would be built on fill.

Four months later, however, the Planning Director rescinded the approval, because the developer had earlier raised the grade by "adding tons of fill on top of the natural ground," and thus the homes to be built could violate the height restriction. In other words, he asserted the new height limit controlled. After a meeting with the mayor and the Planning Director, the Mayor told the developers, orally and in writing, that the old height limit definition applied.

Goo and other nearby homeowners whose views would be blocked by the new development sued the County asserting that the Mayor had wrongfully exempted the development from the applicable height limitation ordinance. The circuit court agreed, and concluded the amended definition which took the fill into account. The court also rejected the plaintiffs' claim for attorneys fees under the "private attorney general" doctrine, concluding that the number of people standing to benefit from the ruling was not everyone in the County as the plaintiffs alleged, but rather was unclear, since the ruling only applied to the development at hand and the only people directly benefitted were those who preserved their view planes.

The plaintiffs appealed the denial of fee-shifting to the court of appeals. After briefing in the ICA, the County Council adopted a new ordinance, which amended the height definition to effectively exempt the challenged project ("[f]or structures within project districts that received phase II approval prior to September 4, 1991, finish grade shall be used to determine height."). The ICA asked for supplemental briefing on the effect of this new ordinance.

In its briefs, the County asked the ICA to vacate the circuit court's judgment, and not merely dismiss the appeal as moot. It could, it argued, be subject to collateral estoppel (issue preclusion to you Gen X'ers) in a future case if the judgment were not voided. The developer argued the case was not moot, while the plaintiffs argued the case was moot with the exception of their claim for fees.

The ICA held the height issue was mooted by the latest ordinance. The court agreed with the County that the circuit court's judgment should be vacated, because if left intact, it might lead to issue preclusion in a future case. The ICA also ruled on the merits of the attorneys fees appeal, and affirmed the circuit court's rejection of the plaintiffs' claims. 

The Supreme Court agreed to review two issues: what remedy the court of appeals should have rendered, and whether the plaintiffs' personal benefit precluded fee shifting under the private attorney general doctrine. On the first issue, the court agreed that the ICA should not have vacated the trial judgment, for the reasons it gave. Instead, the court adopted a presumption against vacatur (an "extraordinary remedy"), and concluded that there must be a "fuller" factual record in order to do so. There must be an "equity-balancing, fact-intensive" inquiry, a process best left by the appellate court to the trial court. See slip op. at 32. And it does not have to be what the court called an "all or nothing" determination, id. at  33, and the trial court "may modify a judgment to address the interests of both parties."

Thus, the better rule to apply is that, when a case becomes moot on appeal and the trial court has not had an opportunity to evaluate a motion for vacatur, the appellate court, in the absence of exceptional circumstances, should remand the case to the trial court to give the court the first opportunity to evaluate the cause of the mootness based on a complete record.

Slip op. at 34. The court doesn't exactly spell out what factors the circuit court is to apply, but the opinion has a few tidbits about what will be relevant (each one potentially important, yet not, apparently, dispositive): whether the mootness is "happenstance" (an outside event, for example), or was caused by the parties themselves as the plaintiffs alleged here, asserting that the County caused the mootness by adopting the last ordinance, whether the requirements of Rule 60 of the rules of civil procedure have been met (see slip op. at 35), and to "balance the equities." Since the trial court's decision is within its discretion, good luck with any appellate challenge to that. See id. at 36.

The court also analyzed the private attorney general issue, but this post is already way too long, so we will detail that part of the decision in a separate post.

One more thing before we go. Here's how the court described the "three-phase" process for approving development projects:

On Maui, approval of development projects is a three-phase process. Phase I involves approval of ordinances by the Maui County Council (Council) that include prescribing the height and density of structures to be built in a project. Phase II requires approval of the preliminary plat by the Planning Commission. Phase III requires the approval of the final plat by the director of the Department of Planning. According to the Charter of the County of Maui, the director of the Department of Planning is charged with enforcing the zoning ordinances. Maui County Charter § 8-8.3(6).

Approval of subdivisions requires the approval of various state and county agencies. Ultimately the planning director can approve subdivisions if they "conform to . . . the county general plan, community plans, land use ordinances, the provisions of the Maui County Code, and other laws relating to the use of land[.]" Maui County Code § 18.04.030 (1993).

Slip op. at 3.

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Goo v. Arakawa, No. SCWC-30142r(Haw. Feb. 19, 2014)