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Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
30-SEP-2026
12:01 PM
Dkt. 175 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---IN THE MATTER OF THE PETITION FOR THE
COORDINATION OF INDIVIDUAL PLAINTIFFS MAUI FIRE CASES
SCAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CAAP-XX-XXXXXXX; CASE NO. 2CSP-XX-XXXXXXX)
SEPTEMBER 30, 2026
McKENNA, ACTING C.J., EDDINS, AND GINOZA, JJ., AND
CIRCUIT JUDGE MORIKONE, IN PLACE OF DEVENS, C.J., RECUSED,
AND CIRCUIT JUDGE TOMASA, ASSIGNED BY REASON OF VACANCY
OPINION OF THE COURT BY EDDINS, J.
I.
The 2023 Lahaina wildfires leveled one of the nation’s most
historic towns. Over one hundred people died.
The fires also brought the largest settlement in state
history. And with it a predictable question. Who pays the
lawyers, and how much?
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Circuit Court of the Second Circuit Judge Peter Cahill
faced billions in claims, thousands of victims, and hundreds of
attorneys with overlapping and competing fee demands.
He answered with an attorney fee order (Order). It capped
contingency fees on a tiered scale, set aside a $222 million
Common Benefit Fund (Fund) for lawyers whose common work
advanced the recovery, and appointed a “Common Fee Review Board”
(Board) to divide the Fund.
Three attorneys and a claimant appeal.
Their central attack is that the circuit court had no power
to enter the fee order. That voids the Order from the start.
Even with the power, they add, the exercise was an abuse of
discretion.
There’s more. The order is unconstitutional. It takes the
victims’ property for private use. It shuts out lawyers
licensed elsewhere. And it offends due process, privileges and
immunities, equal protection, and the separation of powers.
Appellants are wrong on the power. Judge Cahill had
authority to act. Two overlapping grounds sustain that
authority.
The first is the open special proceeding. The court
created a special proceeding to coordinate the many wildfire
claims. It never closed. The settlement remained in the
court’s hands. The court still supervises what it approved.
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The second is equitable. The common fund doctrine gives a
court equitable power to pay from a shared recovery for the
common work that produced it. Here, that work built a multibillion-dollar recovery. The court’s equitable power authorizes
the $222 million set-aside.
The Order is not void.
Yet three provisions go too far. Each seals the Order’s
fee rulings from review. The Board’s award is declared final
and unappealable. Any appeal voids the lawyer’s award. And a
separate provision freezes payments to a lawyer who appeals an
above-cap award, until judgment is beyond review. One provision
forbids review outright. The other two punish anyone who seeks
it.
Review is secured by statute and protected by due process.
We vacate the three provisions and leave the rest of the Order
intact.
Striking the anti-appeal conditions does not unravel the
fee order. It opens the rulings to review. The Fund still
exists, the fee schedule still stands, and the Board still does
its job.
The remaining challenges do not merit relief. The Order is
affirmed as modified.
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II.
On August 8, 2023, wildfires swept through West Maui, and
destroyed much of Lahaina, a former capital of the Hawaiian
Kingdom.
Too many lives were lost. “Hundreds suffered physical and
emotional injuries. Properties and historic sites were
destroyed. Businesses and livelihoods impacted by the fires
paused as Lahaina worked to rebuild. The lasting physical and
mental health toll, and social, cultural, and economic impacts
of this catastrophe continue to resonate in Hawaiʻi and beyond.”
Burnes v. Hawaiian Elec. Co., 158 Hawaiʻi 21, 25, 583 P.3d 794,
798 (2026).
Litigation followed. At once. Lots of it. Against
Hawaiian Electric, the State, the County of Maui, large
landowners, and others.
On October 16, 2023, the Circuit Court of the Second
Circuit designated thirteen Maui fires cases as complex
litigation under Rule 12 of the Rules of the Circuit Courts of
the State of Hawaiʻi (RCCSH).
Ten days later, counsel designated to lead the coordination
(Liaison Counsel) asked the court to open a special proceeding.
The docket was growing. Hundreds more filings from Maui
wildfire victims were expected.
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The next day, Judge Cahill granted the request and opened a
special proceeding, 2CSP-XX-XXXXXXX. Through that proceeding,
the court appointed liaison counsel and a plaintiffs’ steering
committee, and issued the governing case management orders. It
coordinated discovery and motion practice, sequenced bellwether
trials, engaged BrownGreer as claims administrator, and oversaw
settlement and administration across the individual cases.
The work produced a $4.037 billion global settlement.
One complication had loomed along the way – the insurers’
subrogation claims. In March 2025, this court confined those
claims to the statutory lien under Hawaiʻi Revised Statutes (HRS)
§ 663-10 (2016). See In re Maui Fire Cases, 155 Hawaiʻi 409, 565
P.3d 754 (2025). We reaffirmed that limit earlier this year and
denied the insurers’ bid to intervene. See Burnes, 158 Hawaiʻi
21, 583 P.3d 794.
In June 2025 the circuit court approved the Maui Wildfires
Individual Settlement Agreement (ISA). Section 3.7.1 of the ISA
left each claimant’s attorney fee to the retainer between
claimant and chosen counsel. Section 10.12 reserved the circuit
court’s jurisdiction over the ISA’s administration and over fee
disputes among counsel.
The ISA included claimants who retained counsel – the
Individual Plaintiffs. Other categories of claimants had their
own settlement tracks.
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As the first installment to the victims was funded, the
filed individual actions were dismissed with prejudice, one
after another. Many victims had never filed suit at all. They
pursued their claims through BrownGreer. None of the dismissal
orders reserved the court’s authority over the settlement.
The special proceeding remains open.
On February 4, 2026, the Department of the Attorney General
(State) moved for orders on attorney fees. It asked the circuit
court to hold that HRS § 662-12 (2016), which caps fees in tort
actions against the State, applied. The State also invoked the
court’s equitable authority over the common fund.
Liaison Counsel agreed that HRS § 662-12 applied and left
the rest to the court.
On June 5, 2026, the circuit court entered an Order Re:
Attorney Fees, amended June 10, 2026 (Order).
The Order lays down three paths to a fee. Each with its
own rules.
Path one is the scheduled contingency fee. Automatic.
Every lawyer representing an Individual Plaintiff gets a fee
under a tiered schedule keyed to when the client retained
counsel and how far the case had progressed. Up to 1% for One
ʻOhana Fund counsel – attorneys representing claimants who
resolved through the State-administered pre-suit relief program.
Up to 3% for clients retained on or after August 19, 2024. Up
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to 8.33% for clients retained before then. Up to 10% for trialset cases with pre-August 19 retention. For subrogating
insurers’ attorneys, up to 8.33%. For class counsel, 5%.
Payment comes from the client’s own settlement recovery,
through BrownGreer. No application. No hearing. No Board.
Path two is the Common Benefit Fund. Voluntary. The Order
directs BrownGreer to set aside $222 million from the global
settlement, before distribution, to pay for common work that
benefited all claimants.
A Common Fee Review Board reviews voluntary applications
from Hawaiʻi-licensed attorneys who represented Individual
Plaintiffs. The Board is chaired by retired Associate Justice
James Duffy, includes retired Judges Jeffrey Crabtree and Dean
Ochiai, and is administered by Dispute Prevention & Resolution,
Inc. The Board meets confidentially, issues no findings of fact
or conclusions of law, and its members enjoy absolute immunity.
The Board awards shares of the Fund by percentage, not by
dollar amount. What the Board does not award returns to the
claimants in proportion to their net recovery.
Path three is the above-cap fee. Judicial. An attorney
who wants more than what the path one schedule allows may move
in the special proceeding for an above-cap award. The circuit
court sets the matter for hearing, counsel presents evidence,
and the court enters an order and judgment. Path three has its
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own ceilings: 3.5% for post-August 19 retention, 10% for preAugust 19 retention, and 12.5% for trial-set cases. Class
counsel “may also seek additional fees capped at 7.25% of the
class settlement amount of $135,000,000.” Payment comes from
the client’s own recovery, not the Fund.
Several features of the Order that limit review are on
appeal here. The Order declares that the Fund’s awards are
“FINAL AND CANNOT BE APPEALED.” Any appeal will “void the
award.” For the above-cap route, the Order directs that once an
appeal is filed, BrownGreer withhold all of the appealing
attorney’s future fee payments until judgment is no longer
appealable.
The Order also restricts eligibility. Only Hawaiʻi-licensed
attorneys may request participation in the Fund. Participation
is voluntary. Applications are filed in the special proceeding.
The Board may consider the work of associated pro hac vice
counsel in setting an award.
The Order recites that the Attorney General reviewed the
awards and concurred that they are “fair and reasonable.”
Claimant Michael Bates and attorneys Anthony Ranken, Alex
Edrenkin, and John Thickstun (Appellants) sought review two
ways. They petitioned this court for writs of mandamus and
prohibition. They also appealed to the Intermediate Court of
Appeals.
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This court accepted transfer on August 5, 2026, and ordered
briefing. Oral argument was held on September 15, 2026.
III. This Court has Authority to Hear the Appeal
Before the merits, jurisdiction.
The Individual Plaintiffs defending the Order argue this
court has no jurisdiction to hear the appeal. They say the
Order was entered in an open special proceeding that will end in
no appealable final judgment.
Appellants offer two jurisdictional paths. The collateral
order doctrine. And the older Forgay doctrine, tracing to
Forgay v. Conrad, 47 U.S. 201 (1848). See Lambert v. Teisina,
131 Hawaiʻi 457, 319 P.3d 376 (2014).
Jurisdiction exists under the collateral order doctrine.
After today, Forgay is no longer a separate jurisdictional route
in Hawaiʻi.
A. Jurisdiction Exists Under the Collateral Order Doctrine
Statutory rights to appeal generally require a final
disposition. The legal system creaks if a single case splinters
into separate appeals.
HRS § 641-1(a) (2016) allows appeals from “final judgments,
orders, or decrees.” A post-judgment order is final and
appealable under the statute if it ends the proceeding and
leaves nothing further to be done. Ditto v. McCurdy, 103 Hawaiʻi
153, 157, 80 P.3d 974, 978 (2003).
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Ordinarily an appeal from a circuit court awaits a separate
judgment. An order resolving claims is appealable only after it
is reduced to a judgment entered under Hawaiʻi Rules of Civil
Procedure Rule 58. Jenkins v. Cades Schutte Fleming & Wright,
76 Hawaiʻi 115, 119, 869 P.2d 1334, 1338 (1994). No separate
judgment was entered here.
The collateral order doctrine supplies the exception. An
order is immediately appealable if it (1) conclusively
determines the disputed question, (2) resolves an important
issue completely separate from the merits, and (3) is
effectively unreviewable on appeal from a final judgment. Greer
v. Baker, 137 Hawaiʻi 249, 253, 369 P.3d 832, 836 (2016); Abrams
v. Cades, Schutte, Fleming & Wright, 88 Hawaiʻi 319, 322, 966
P.2d 631, 634 (1998).
The Order meets each requirement.
The circuit court has resolved these questions. It set the
fee caps, the $222 million Fund, the review Board, and the
above-cap process, and will not revisit them in the ordinary
course of the proceeding. Conclusive determination.
The fee question is separate from the tort claims the
special proceeding was designed to coordinate. Liability and
damages in the individual cases are their own matter. The
tiers, the Fund, and the Board turn on the equitable supervision
of a settlement. The merits are elsewhere.
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Review will never come if we wait for it. The coordination
proceeding ends in no final judgment, and the Order’s appeal
provisions shut the ordinary appellate channels behind it.
Effective unappealability.
The collateral order doctrine applies.
B. Forgay Is No Longer a Separate Route
In their jurisdiction statement, Appellants invoke Forgay
v. Conrad.
Forgay is redundant. Each time this court has turned to
it, the worry was that an order commanding the immediate
transfer of property could not be undone once the property
changed hands. See Lambert, 131 Hawaiʻi at 458, 319 P.3d at 377;
Ciesla v. Reddish, 78 Hawaiʻi 18, 19-20, 889 P.2d 702, 703-04
(1995). The third element of the collateral order test captures
the same concern.
The Seventh Circuit made the same point in Construction
Industry Retirement Fund of Rockford, Illinois v. Kasper
Trucking, Inc., 10 F.3d 465 (7th Cir. 1993). Judge Easterbrook
applied Forgay to an order directing payment, then absorbed the
doctrine into the collateral order framework, and treated
Forgay’s rule as one route to satisfy the third element, rather
than a separate test. His court had, he explained, “generalized
the approach under the banner of the collateral order doctrine,”
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resting appealability on whether “the money, once disbursed, is
effectively beyond recall.” Id. at 468.
Forgay names what the collateral order test already does.
Modern Hawaiʻi cases have done the analysis Forgay called
for. Ciesla and Lambert were rightly decided. Each order was
appealable because it directed a transfer no later judgment
could repair. Each satisfied the collateral order test.
From today, the appealability of an order for the immediate
transfer of property falls under the collateral order doctrine.
Forgay no longer has a place in Hawaiʻi law.
Look at what Forgay was. It involved a suit to void
fraudulent conveyances. The property the decree ordered
“delivered up” was, in its own words, “lands and slaves.” 47
U.S. at 202.
The Supreme Court held the decree instantly appealable
because the losing party should not have to hand over property
(people!) and wait out the case for review. The irreparable
harm behind the doctrine was the loss of human beings held as
chattel. Forgay yokes people and parcels together, sorts them
with the same verbs, and never flinches that one is a person.
Forget Forgay.
C. Statutory Reinforcement
Appellate jurisdiction finds further support in HRS § 602-5(a)(6) (2016).
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The statute exists for the case that outruns the ordinary
categories. It empowers this court to take “such other steps as
may be necessary . . . for the promotion of justice in matters
pending before it.” Our rules of appellate practice cannot
anticipate every proceeding. A fee order entered in an open
special proceeding, reviewable under no standard appellate
route, is the kind of matter it was written for.
The Order fits HRS § 602-5(a)(6). It emerged from a
coordination proceeding of unprecedented scale in Hawaiʻi,
governs a global settlement of $4.037 billion, redirects $222
million from it, and seals review over its own decisions.
Jurisdiction arises under the collateral order doctrine.
HRS § 602-5(a)(6) is a second ground.
IV. The Circuit Court Had Authority to Enter the Order
Appellants’ central position is that the circuit court
lacked subject matter jurisdiction to enter the Order. In their
view that makes the Order void from the start, reversible
whatever it says.
Their argument goes this way. The individual actions were
dismissed with prejudice, and none reserved jurisdiction. Many
claimants never filed at all. The ISA, Appellants say,
committed each fee to private contract, reserving to the court
only enforcement and disputes among counsel. On their reading,
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the court revisited fees a year after approving the settlement
in cases that no longer existed.
Appellants rely on Amantiad v. Odum, 90 Hawaiʻi 152, 977
P.2d 160 (1999). There, this court held that a court loses
jurisdiction to enforce a settlement in cases dismissed with
prejudice.
Amantiad addressed a different posture. Jurisdiction
exists here.
The Order stands on two interrelated grounds. Neither
depends on the closed individual cases.
A. The Special Proceeding Remained Open
The court entered the Order in 2CSP-XX-XXXXXXX. That
proceeding was still open when it issued.
The circuit court created the special proceeding under
RCCSH Rule 12 to coordinate the many claims arising from the
Maui wildfires. Under that rule, a court may issue case
management orders on any matter “conducive to the just,
efficient, and economic determination of the case.” RCCSH Rule
12(c)(3)(B)(iii).
A special proceeding outlives any single plaintiff’s
dismissal. Here, it is a vehicle the circuit court created to
coordinate thousands of related claims and to supervise the
settlement that resolved them. The court named settlement
masters, oversaw the claims process, and scheduled the payment
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installments. It still manages liens, disbursements, and the
loose ends of a settlement paid out over years.
Strip the court of that continuing authority and it would
be powerless over the very proceeding it opened. The one that
produced $4.037 billion for the victims.
Authority over collateral matters survives dismissal. Even
after the merits close, a court keeps jurisdiction over those
matters. TSA Int’l Ltd. v. Shimizu Corp., 92 Hawaiʻi 243, 265,
990 P.2d 713, 735 (1999). Attorney fees are collateral. Queen
Emma Found. v. Tatibouet, 123 Hawaiʻi 500, 510, 236 P.3d 1236,
1246 (App. 2010) (Attorney fees “survive[] independently under
the [c]ourt’s equitable jurisdiction.”). Dismissal does not end
the court’s fee authority.
The dismissals no more stripped the court of authority over
fees drawn from the settlement than the entry of a judgment
would strip a court of authority to award fees under it.
Appellants pair Amantiad with Kokkonen v. Guardian Life
Insurance Company of America, 511 U.S. 375 (1994). Each
addresses one situation: a court reopening a single dismissed
case to enforce a private settlement never made part of the
dismissal. Neither speaks to an order entered in a live
proceeding that the court opened, and kept open, to supervise
the coordination of claims and settlement. The dismissals ended
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the individual actions. The court’s authority over the
settlement remained.
Coordination is procedure. And that’s all, Appellants
maintain. A court managing many cases cannot order parties in
dismissed cases to pay into a fund. In federal court,
Appellants would have a point. Aggregation under federal
procedural rules may not by itself enlarge a federal district
court’s subject matter jurisdiction. Gibbs v. Buck, 307 U.S.
66, 89–90 (1939).
The matter before Judge Cahill is different. It is a
freestanding special proceeding under Hawaiʻi law, opened to
coordinate claims and supervise a settlement’s administration.
It’s still open.
Appellants lodge a related challenge. It traces to Liaison
Counsel’s statements in a 2024 removal proceeding in federal
court. Counsel represented that the special proceeding was no
civil action, joined no parties, relied on no operative
pleading, and served only to manage the coordinated cases. The
United States District Court for the District of Hawaiʻi accepted
the representation and remanded. See In re Maui Fire Cases, No.
24-00035 HG-BMK, 2024 WL 759707 (D. Haw. Feb. 7, 2024).
Now Appellants say that if the proceeding is what Liaison
Counsel called it in federal court, it cannot support what the
circuit court did here.
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We disagree.
What Liaison Counsel told the federal court answered a
federal question. Removal under 28 U.S.C. § 1441 asks whether a
matter is a civil action within the original jurisdiction of the
district court. A state coordination proceeding that pleads no
federal claim and joins no diverse parties is not removable.
What Liaison Counsel said went to federal jurisdiction. A
Hawaiʻi court’s authority over an open special proceeding it
created is unaffected. Federal removability and state authority
are separate things.
Judicial estoppel stops a litigant from winning on one
position and then flipping in a later proceeding. No flip here.
Coordination is what Liaison Counsel described in federal court,
and coordination is what the proceeding still does.
The power to set fees comes from the court’s supervision of
the Fund. A settlement this massive operates differently. No
trial. No roster of named plaintiffs. That’s how this
proceeding rolls. Fee power follows the Fund.
When the proceeding remains open, the Second Circuit’s
authority stands.
B. The Common Fund Doctrine
Equity supplies the second ground for the court’s
authority.
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When litigation produces a fund that others share, the fund
pays for the work that made it possible. That’s the common fund
doctrine. A litigant or lawyer “who recovers a common fund for
the benefit of persons other than [themselves] or [their] client
is entitled to a reasonable attorney’s fee from the fund as a
whole.” Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980).
The doctrine’s logic is elementary. Those who share the
fund without sharing the work that built it take a benefit they
didn’t earn. The remedy is a fee drawn from the whole fund,
spread across all who benefit.
The doctrine is settled in Hawaiʻi. This court adopted it
in Montalvo v. Chang, 64 Haw. 345, 641 P.2d 1321 (1982). A
plaintiff or attorney “whose efforts create, discover, increase
or preserve a fund to which others also have a claim is entitled
to recover from the fund the costs of [their] litigation,
including attorneys’ fees.” Id. at 352, 641 P.2d at 1327
(cleaned up).
A reasonable fee is paid from the recovery and apportioned
among those who share it, in amounts proportionate to each
share. Id. at 361, 641 P.2d at 1332. The court sets that
award. Private retainers between claimants and their own
lawyers stay out of it. They are, in Montalvo’s words, “simply
irrelevant.” Id. (cleaned up).
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Montalvo’s method has since changed. Montalvo required
lodestar as the only method, borrowed from the Third Circuit.
This court dropped that requirement in Chun v. Board of Trustees
of Employees’ Retirement System of State of Hawaiʻi. We held
that a trial court may calculate a common fund fee by the
lodestar method or by a straight percentage of the fund. 92
Hawaiʻi 432, 446, 992 P.2d 127, 141 (2000).
In a later opinion in the same case, we upheld a fee set at
twenty-five percent of the fund, treating that figure as a
permissible benchmark and finding no abuse of discretion. Chun
v. Bd. of Trs. of Emps.’ Ret. Sys. of State of Hawaiʻi, 106
Hawaiʻi 416, 435-36, 106 P.3d 339, 358-59 (2005).
Chun changed the method. The math moved. Hawaiʻi law lets
a court set a common fund fee as a percentage of the fund, or by
the lodestar, whichever fits the case.
Appellants counter with Montalvo itself. It was a class
action, they point out, and its fee came from a fund the
judgment created. This litigation is nothing like Montalvo. No
class was certified. Consolidation under Rule 42(a) was sought
and denied. The cases were coordinated and that was it.
Coordination alone, Appellants add, does not weld thousands of
separate recoveries into one fund.
Montalvo tied the common fund doctrine to a fact in the
record. Rule 23 was how the case got there. Litigation efforts
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created or enlarged a fund others share. Equity applies no
matter how the fund emerges: by class judgment, a consolidated
verdict, or coordinated global settlement.
Hawaiʻi law opens the doctrine to any procedure that yields
a shared fund. The $4.037 billion settlement is a single,
identifiable fund, built by common work, shared by every
claimant. The claimants arrived through a coordinated
proceeding. A certified class would have too. The accounting
changes. Equity’s song remains the same.
The Order fits. The circuit court approved the global
settlement and supervises its administration. It set aside $222
million of that recovery, before distribution, to pay the
lawyers whose common work built the settlement. That set-aside
is about five and one-half percent of the recovery, far less
than the figure we approved in Chun. What the Board does not
award returns to the victims. “Any remainder shall be
distributed to all claimants in proportion to their net
recovery.” The money stays inside the settlement and pays only
for the effort behind it.
Appellants say the doctrine doesn’t fit. The court’s
control ended at approval, when the settlement passed to an
administrator. Approval closed the court’s role, they argue.
Not here. The administration is ongoing. The court
supervises the settlement it approved.
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BrownGreer’s custody is the court’s custody. The qualified
settlement fund exists by the court’s order and operates under
judicial supervision. Whether the money sits in the court’s
registry or in a fund the court created and controls is form,
not substance.
Hawaiʻi’s test is equitable control. This court long ago
approved fees from a common fund “under the custody or control
of the court.” Von Holt v. Izumo Taisha Kyo Mission of Hawaii,
44 Haw. 147, 366, 355 P.2d 40, 45 (1960). Montalvo asks whether
the litigant’s efforts created, increased, or preserved a fund
others share. See 64 Haw. at 352, 641 P.2d at 1327.
The circuit court approved and oversees the settlement pot.
It created the Fund by its Order, directs the set-aside, governs
the remainder, and supervises the settlement. Whatever the
escrow account number, that’s equitable control.
Appellants have more to say about the Fund.
Appellants find a supposed waiver right off the bat, in
Case Management Order (CMO) No. 1. In that order, Liaison
Counsel and members of the Steering Committee agreed that they
“shall seek” no “common benefit attorney fees” in matters where
they are not counsel of record for the specific client.
Appellants believe that language forecloses the Fund altogether.
They call it the law of the case. And, they add, some of the
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very lawyers who advanced the order now line up to apply to the
Fund.
Sure, the order says what it says. We take it at its word.
But it doesn’t doom the Fund.
Case Management Order No. 1 governs what its named lawyers
may seek. It is guidance about the leadership’s own
compensation.
The Order under review does something beyond that guidance.
It compensates the common work from a fund the court set aside
from the global recovery. It also caps what every individualplaintiff lawyer, leadership included, may charge an individual
client.
The reliance point deserves attention. Leadership accepted
CMO No. 1’s disclaimer at the outset, Appellants say. Now they
can’t reverse course and be paid from a common source the
disclaimer foreclosed. They anchor the argument in Martell v.
Employees’ Retirement System, 158 Hawaiʻi 139, 145, 588 P.3d
1152, 1158 (2026), which addresses the “undue hardship” that
comes from changing rules on parties who relied on them.
Makes sense. But it undervalues what the court kept for
itself.
CMO No. 1 directed lead counsel not to seek common-benefit
fees. It left untouched the court’s later exercise of equitable
authority over a fund the settlement created. Martell governs
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administrative reversals that upset settled expectations. This
isn’t one.
The Order is a court exercising equitable authority over a
fund it approved and continues to supervise. Agency reversals
of policy are different. Whether a lawyer who falls under CMO
No. 1 may now share in the Fund is a question for the Board.
And then for circuit court review. None of this undoes the
court’s power to establish the Fund.
Appellants also try law of the case. The label misfires.
Under the doctrine, a prior ruling of law controls at later
stages of the same case. Ditto v. McCurdy, 98 Hawaiʻi 123, 128,
44 P.3d 274, 279 (2002). CMO No. 1 is not a ruling of law.
Times change. Circumstances change. CMO No. 1 was entered
in January 2024, when the coordination effort was new and no
settlement architecture was in view. The $4.037 billion
recovery and the $222 million fund carved from it were the work
of years to come.
CMO No. 1 spoke to what was in front of the court then. It
did not, and could not, resolve fee questions from a settlement
not yet reached. The special proceeding stayed open. The
court’s authority stayed with it.
Appellants’ equitable objection goes to the common fund
doctrine’s core. The doctrine exists to catch freeloaders, they
say – those who take a benefit without paying for it. But here,
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they argue, every claimant is a paying client under a
contingency contract. No freeloaders. On Appellants’ reading,
the Fund takes from represented victims, some of whom never
filed suit, to pay lawyers those claimants never hired.
Appellants serve up an image: an eleventh slice cut from a
ten-slice pie. Every dollar in the settlement, they say,
already belongs to a victim or that victim’s lawyer. A Fund for
common work, on their view, takes from someone else’s slice.
They misread the common work.
Each claimant’s own lawyer valued that claimant’s case and
carried it through the settlement program. But the common work
is something else. It coordinated discovery across thousands of
claims and sequenced the bellwether trials. It resolved the
subrogation and lien problems that threatened every recovery.
It assembled the global settlement that paid them all.
No private retainer bought that. Common work benefitted
every claimant who recovered. Even the unfiled, because the
unfiled recovered through the very program that common effort
assembled. Spreading its cost across those it served is the
common fund doctrine doing what it’s supposed to do.
There’s no eleventh slice. There’s a cost to baking the
pie. Spread among those who eat it.
Federal courts have gone the same way. They assess common
benefit fees on a coordinated recovery. The doctrine covers
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even claimants who were not part of the litigation before the
court. See In re Bard IVC Filters Prod. Liab. Litig., 81 F.4th
897 (9th Cir. 2023); In re Vioxx Prods. Liab. Litig., 802 F.
Supp. 2d 740 (E.D. La. 2011); In re Zyprexa Prods. Liab. Litig.,
424 F. Supp. 2d 488 (E.D.N.Y. 2006) (Weinstein, J.); In re Air
Crash Disaster at Florida Everglades on Dec. 29, 1972, 549 F.2d
1006 (5th Cir. 1977).
We cite these cases for the principle. Hawaiʻi’s common
fund doctrine needs no federal import.
C. Statutory Reinforcement
Two statutes track the equitable grounds.
HRS § 607-15.5 (2016) lets either party in a tort
settlement request court approval of fees. The Maui Fires cases
are tort actions. The parties settled. The State, one of the
settling defendants, moved for court approval. Kamalu v. Paren,
Inc. holds that HRS § 607-15.5 allows a court to limit tortsettlement fees at a reasonable amount. 110 Hawaiʻi 269, 275,
132 P.3d 378, 384 (2006). Every element is here. The statute
reinforces the court’s equitable authority.
HRS § 662-12 raises harder questions. The State led with
it. Appellants dwell on it. We do not rely on it.
The statute allows the court or the Attorney General to fix
reasonable fees, capped at twenty-five percent, out of a
judgment, award, or settlement in a tort action against the
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State. See O’Grady v. State, 141 Hawaiʻi 26, 29, 404 P.3d 292,
295 (2017).
Appellants set the text against the Order. No judgment or
award was ever entered against the State. The State settled.
The only settlement actor the statute names is the Attorney
General, and her disposition power was spent when she settled in
August 2024 without fixing a fee cap. As Appellants read it,
the statute’s cap runs on the amount recovered against the
State. The $222 million comes from elsewhere.
We do not need to sort through the HRS § 662-12 arguments.
The Order does not depend on the statute. The open special
proceeding, the equitable authority over the common fund, and
HRS § 607-15.5 sustain the Order.
D. The ISA Did Not Forbid the Assessment
That leaves the contract.
Appellants say the ISA fixed each fee by private agreement.
The modification clause kept the court from rewriting the fees.
The Order did something else. The ISA committed each fee
to private agreement “consistent with . . . applicable law.”
A common benefit assessment is part of that applicable law
in aggregate litigation. A contract “is presumed to include all
applicable statutes and settled law relating to its subject
matter.” Kawakami v. Kahala Hotels Invs., LLC, 142 Hawaiʻi 507,
514, 421 P.3d 1277, 1284 (2018) (citation omitted). The ISA’s
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“applicable law” hook absorbs Hawaiʻi’s fee-supervision law into
the contract.
The jurisdictional half of the contract argument fares no
better. Section 10.12 of the ISA reserves the circuit court’s
jurisdiction over enforcement and over fee disputes. But
parties cannot confer subject-matter jurisdiction by agreement.
Miller v. Collins, 158 Hawaiʻi 435, 438, 593 P.3d 374, 377
(2026). Nor can they limit it. The court’s authority sits
outside § 10.12. It comes from the open proceeding and from
equity.
E. We Reserve the Attorney General’s Status
The Order recites that the Attorney General, “as Trustee of
the Global Settlement funds,” reviewed the awards and concurred
that they are fair and reasonable.
The State’s brief does not adopt that framing. It
disclaims the trustee role and treats the Attorney General as
administrator.
Appellants say the Attorney General is no trustee. The
State now agrees. HRS § 28-13.5 (Supp. 2025) and Act 301 (2025)
make her the administrator of the fund, without fiduciary or
supervisory power over privately negotiated fees. She cannot
serve as the fund’s fiduciary, Appellants add, while she
represents the State, an adverse party. The statute’s text
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supports them. It says the fund “shall be administered by the
attorney general.” HRS § 28-13.5(a). Administer. That’s it.
Our holding relies on the court’s own authority - the open
proceeding and equity. The Attorney General’s status is a
different question. Whether she is trustee or administrator is
one issue. Whether she can administer the Fund while
representing the State as a defendant is another. We leave both
for a case that requires them.
Back to the void argument that opened Part IV.
A court acting within an open proceeding, over a fund it
approved and supervises, has all the jurisdiction it needs. The
void-from-the-start argument applies where the court had no
jurisdiction to begin with.
Judge Cahill’s Order is not void.
V. The Anti-Appeal Provisions Are Vacated
Appellants prevail on part of the Order.
Three provisions condition the receipt or the retention of
a fee on surrendering the right to appeal. The first two govern
the Fund. The Order declares that the Board’s award “shall be
FINAL AND CANNOT BE APPEALED,” and that “[a]ny appeal shall void
the award.” The third governs the above-cap route. Upon the
filing of an appeal, the Order directs BrownGreer to withhold
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all of the appealing attorney’s future fee payments until a nonappealable judgment is entered.
HRS § 641-1(a) confers the right to appeal in civil
matters. Article I, Section 5 of the Hawaiʻi Constitution
secures the right of access to the courts, including the right
to seek review.
Government may not condition a benefit on the surrender of
a protected right. Frost v. R.R. Comm’n of State of Cal., 271
U.S. 583, 593-94 (1926). The principle extends to penalties
that burden the choice to seek review or to stand on one’s
rights. United States v. Jackson, 390 U.S. 570, 581-83 (1968);
North Carolina v. Pearce, 395 U.S. 711, 724 (1969).
The concern is familiar to our court. Hawaiʻi law does not
let trades of appellate review for a benefit defeat this court’s
review of important public questions. In State v. Hewitt, the
State offered to dismiss criminal charges if the defendant would
abandon her pending cert petition. We retained jurisdiction and
decided the merits under the public interest exception to
mootness. 153 Hawaiʻi 33, 41, 526 P.3d 558, 566 (2023).
Allowing the arrangement to preclude review, we explained, would
“place the defense of the integrity of judicial decisions in the
hands of litigants . . . .” Id. at 42, 526 P.3d at 567.
The problem here takes two forms. The Fund provisions
eliminate appeal. The freeze punishes anyone who files one.
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All three provisions go too far. A fee forfeited the
instant its recipient files an appeal is a penalty for
exercising the right. The payment freeze works the same
coercion, just slower. It withholds all the lawyer’s future fee
payments, undisputed amounts included, until the appeal is
abandoned or exhausted.
The circuit court’s authority to design the Fund and set
the schedule is broad. It stops at conditioning payment on
waiving appeal.
The rest of the Order holds. Those who defend the Order
may worry that vacating these three provisions unravels the
whole. Our disposition touches three provisions only, and their
removal changes nothing else.
The Fund exists by the court’s equitable authority. The
schedule sets the tiers by the court’s discretion. The Board
reviews applications by the court’s appointment. None of these
depends on the anti-appeal provisions.
The anti-appeal provisions sealed the fee decisions from
review. Strike them, and the Fund, the schedule, the Board, and
the above-cap route all remain. The circuit court shall direct
release of any fee payments withheld under the vacated
provisions and not already released. No undisputed payment may
be withheld on the ground that an appeal was filed.
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Our holding is narrower than it may first appear. It does
not grant unlimited review. The supervising circuit court
reviews Board awards. This is the only forum for review of
Board awards.
The Board is a court-appointed aide. Its awards are
administrative determinations. Circuit court review satisfies
due process. A dissatisfied party has a forum to be heard and a
ruling to receive. Supervision continues until the Fund is
fully distributed to attorneys and victims.
The above-cap route operates differently. An attorney
seeking more than the scheduled cap must move in the special
proceeding, present evidence, and obtain an order and judgment.
Under HRS § 641-1(a), that judgment is appealable in the
ordinary course.
Above-cap fees come out of the client’s own recovery. An
increase for the attorney reduces the client’s award. The
client is entitled to notice of the request and an opportunity
to be heard. The client may also appeal. The Order adjudicates
a property interest the client owns. HRS § 641-1(a) gives the
client the ordinary right to appellate review.
Interlocutory review is a different matter. It’s available
only for orders that satisfy the collateral order doctrine.
Greer, 137 Hawaiʻi at 252, 369 P.3d at 835. The structural
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challenges before us satisfy that standard, as Part III.A
explains.
Path one, the scheduled contingency fee, needs no new
review architecture. It is automatic and capped. Paths two and
three each get review.
Board awards under path two are administrative
determinations, reviewable by the supervising circuit court.
Above-cap orders under path three are adjudications by the
supervising court. The Order labels the outputs accordingly:
awards on path two, judgments on path three.
Path two is voluntary. Attorneys apply for the Fund or
they don’t. Those who apply seek a discretionary share of a
court-created equitable fund. Their work benefitted every
claimant the settlement paid.
Zuffante sets the standard. Due process calls for “such
procedural protections as the particular situation
demands.” State v. Zuffante, 157 Hawaiʻi 194, 207, 576 P.3d 243,
256 (2025) (cleaned up). Circuit court review of the Board’s
awards to these attorneys satisfies that standard.
What this situation demands is bounded by the Fund’s
nature. An open special proceeding. Billions in settlement
funds. Voluntary administrative Fund awards. The Board applies
the Order’s criteria and the circuit court reviews. The lawyer
receives the process the voluntary application requires.
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Path three is a judgment. HRS § 641-1(a) provides the
ordinary appellate route from path three judgments.
Removing the anti-appeal provisions answers Appellants’
related complaint that the Board operates in the dark, without
findings or reasons. That objection carried weight because the
Board’s decisions were both opaque and unreviewable.
An award open to review faces scrutiny. The reviewing
court may require whatever explanation meaningful review
demands. We do not decide today what the Board must disclose.
Circuit court oversight will resolve that as it develops.
The three-path structure fits a settlement of this size.
Each path carries the review it needs.
VI. The Remaining Challenges
What remains is the abuse of discretion challenge. Plus a
cluster of constitutional theories.
We start with the discretion argument. Then take up and
reject the three constitutional theories Appellants advance:
takings, due process, and privileges and immunities. The rest
we do not decide. The grounds already stated dispose of them.
A. Abuse of Discretion
Appellants say that even if the court had the power, it
abused its discretion. The court acted without notice or
briefing. It fixed the Fund and a schedule without findings.
And it shielded its awards from review.
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We addressed the anti-appeal provisions. The other
arguments do not warrant reversal.
Designing a fund and setting a tiered schedule is a core
part of managing an aggregate settlement. The court had
context. It had the State’s motion, the parties’ position
statements, and years-long immersion in the litigation that
produced the recovery.
Appellants have more. The relief, they say, was a decree
no one sought. No party moved for the tiered caps, the 1% One
ʻOhana Fund rate, the $222 million Fund, or the Board. And when
affected counsel asked the court to set a briefing schedule
before it ruled, the court denied the request two days before
the Order issued.
Appellants’ claim goes to notice. Notice measured by a
motion’s caption is one thing. Notice of the question the court
will decide is another. Fair distinction.
On both measures, the notice was adequate. Especially the
second. The State’s motion put the court’s authority over
attorney fees in this settlement squarely in play and asked the
court to establish procedures to determine them. The HRS § 662-12 and the common fund questions were before the court at the
March 6 and March 27, 2026 hearings. Every lawyer in the
coordinated cases was on notice that the court was deciding how
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fees in this settlement would be set. The tiers and the Fund
exercise the very authority the motion invoked.
The process continues past the Order. A lawyer requesting
an above-cap fee moves in the special proceeding, presents
evidence, and obtains a judgment. The client, whose recovery
pays the increase, is entitled to notice of the motion and an
opportunity to be heard.
For a Fund award, the applicant applies to the Board. With
the anti-appeal provisions vacated, the award is open to review
by the circuit court. The Order sets the framework. The casespecific process comes when each fee is awarded.
That leaves the denied briefing request. What counsel
asked to brief was the legal question the court had heard argued
and had authority to decide. A court that has taken argument on
its authority may rule on it. The remedy for a ruling counsel
believes to be wrong is the appeal Appellants have now taken.
Next, the demand for individualized findings. The schedule
sets fees by tier and percentage. Appellants say Hawaiʻi Rules
of Professional Conduct (HRPC) Rule 1.5(a) requires case-by-case
findings.
It doesn’t. HRPC Rule 1.5(a) is a rule of professional
conduct. The rule forbids a lawyer to charge an unreasonable
fee and lists the factors for judging one. It binds the lawyer.
And asks nothing of a court. The court’s own authority over
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reasonableness has a different footing. Trial courts hold
inherent and statutory powers over the practice of law and may
exercise them on their own initiative. Alexander & Baldwin, LLC
v. Armitage, 151 Hawaiʻi 37, 49, 508 P.3d 832, 844 (2022).
The reviewability concern Appellants advance comes from a
different source. Montalvo vacated fee awards because their
basis went unstated and the court could not test them for
fairness. 64 Haw. at 357-58, 641 P.2d at 1330. That concern
remains, and the Order meets it. What does not transfer is
Montalvo’s lodestar bookkeeping, for the reasons already given:
the method is discretionary, and a percentage of the fund is a
permitted measure that needs no lodestar at all.
A common fund award is measured as a percentage of the
fund, set by the value of the work that produced it. Chun, 106
Hawaiʻi at 436, 106 P.3d at 359. A common fund percentage does
not require individualized findings. That requirement belongs
to fee-shifting cases and single-client fee disputes.
The Order gives reasons. It supports why the tiers fall
where they do: earlier retention and further progress meant
more risk and more contribution. It sets the criteria the Board
must weigh. Each applicant’s role in achieving the global
settlement, in resolving the subrogation and lien issues, and in
allocating between individual and class claimants. And it keeps
the total in check, capping individual fees well below the
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common fund benchmark this court has recognized, so that the
combined take stays reasonable.
Last, Appellants attack the schedule’s date line as
arbitrary. A client who retained counsel on or after August 19,
2024, is capped at three percent. That date tracks no
settlement event, Appellants say. Settlement came later, signed
November 1, 2024, approved June 3, 2025, and funded in 2026.
What actually happened on August 19, 2024, was the court’s order
asserting jurisdiction over subrogation liens ahead of a global
settlement.
The fee cap line has a reason. The court set the mechanism
for resolving subrogation liens on that date. And the parties
entered a term sheet contemplating a global resolution on August
2, 2024. Before that point a lawyer signed a client into openended litigation against a defendant whose ability to pay was in
doubt. After it, the path to a global settlement was in view.
A lawyer who took a case before the framework carried the full
weight of that uncertainty. A lawyer who took one after carried
less.
The schedule’s line falls about two weeks past the term
sheet. A court managing an aggregate settlement may fix an
administrable date instead of weighing the risk of each
engagement one by one. A reasonable court could draw the line
there.
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The circuit court did not abuse its discretion.
B. Takings
Appellants frame the Fund as a taking. Valid contracts are
property, they say, and the $222 million carve-out takes each
client’s contracted fee and gives it to lawyers the client never
retained, for a private use, without compensation or process.
U.S. Const. amend. V; Haw. Const. Art. I, § 20. They rely on
Lynch v. United States, 292 U.S. 571 (1934). There the Court
held that contracts are property the government may not
appropriate.
Begin with what the Order does and does not take. It does
not seize a fixed contract fee and hand it away. It sets the
terms on which a shared recovery pays for the shared work that
produced it. The contracted fee was never a sum immune from the
court’s supervision. It was a percentage of a recovery the
court approved and administers, agreed to “consistent with . . .
applicable law.”
A common benefit assessment is part of that applicable law
in litigation like this. A claimant’s own lawyer is paid under
the schedule. The Fund pays for the common work that benefited
every claimant, that one included. Nothing is confiscated. The
cost of the common work is spread across those the common work
served.
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That is the common fund doctrine, and it is the opposite of
an uncompensated taking. See Boeing, 444 U.S. at 478; Montalvo,
64 Haw. at 352, 641 P.2d at 1327.
“For private use” fails on the Order’s own terms. The Fund
does not enrich strangers at the victims’ expense. It pays the
lawyers whose work secured the recovery every claimant shares.
And what the Board does not award returns to the claimants.
“Any remainder shall be distributed to all claimants in
proportion to their net recovery.” A device that channels its
surplus back to the victims is not a seizure of their property
for someone else.
Process, too, was present. The assessment came on the
State’s motion, with the parties’ position statements, and after
the court’s long supervision of the settlement. The Attorney
General reviewed the awards and found them “fair and
reasonable.” Facing a similar objection, the Alaska Supreme
Court held that reserving settlement funds for a common fund fee
award does not offend due process. Doan v. Banner Health, 485
P.3d 537, 543 (Alaska 2021). Process was provided.
The takings claim is the common fund objection in
constitutional clothes.
C. Due Process
The due process objection runs in three strands. The Board
decides silently, without findings or reasons. The court
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imposed the Fund and the schedule without adequate notice. And
the awards were sealed from review.
Review comes first, because it is already answered. The
awards are no longer unreviewable. We have vacated the
provisions that made them so. That resolves the reviewshielding concern.
Notice and an opportunity to be heard were available. The
court ruled on the State’s motion, with position statements from
Liaison Counsel, after years supervising the litigation that
produced the recovery.
For the above-cap route, no fee is paid until the attorney
files a motion in the special proceeding, the court sets the
matter for hearing, counsel presents evidence, and “the
Court . . . enter[s] an order and judgment.” This is judicial
process.
That leaves findings. The Board issues none. We do not
wave that away. But individualized findings belong to a
different kind of fee.
A common fund award is set as a percentage of the fund
against the value of the work that produced it. Chun, 106
Hawaiʻi at 436, 106 P.3d at 359. A percentage of a shared fund
is a different creature. The law has long allowed it without
individualized accounting. See Blum v. Stenson, 465 U.S. 886,
900 n.16 (1984).
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The Order fixes the criteria the Board must apply and the
questions it must answer. With review restored, a reviewing
court may require the disclosure that genuine oversight needs.
The Order, as modified, supplies it.
Due process demands a fair process. What the losing party
prefers is beside the point. On this Order, as modified, the
process is adequate. The last word is the court’s.
D. Privileges and Immunities
The Order limits eligibility for the Fund to attorneys
licensed in Hawaiʻi. The Board may consider the work of
associated pro hac vice counsel, though it does not award that
counsel directly.
Appellants contend that this violates the Privileges and
Immunities Clause of Article IV, § 2 of the United States
Constitution by discriminating against nonresident attorneys.
The clause protects the right of nonresidents “to ply their
trade, practice their occupation, or pursue a common calling.”
Hicklin v. Orbeck, 437 U.S. 518, 524 (1978). The Supreme Court
has applied it to strike residency barriers to the practice of
law. Supreme Court of New Hampshire v. Piper, 470 U.S. 274
(1985); Supreme Court of Virginia v. Friedman, 487 U.S. 59
(1988). A State that closes a fundamental right to nonresidents
must show a substantial reason for the difference and a close
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fit between the reason and the rule. Piper, 470 U.S. at 284;
Friedman, 487 U.S. at 65.
The Hawaiʻi-attorney provision does not offend privileges
and immunities.
Attorneys without a Hawaiʻi license are not shut out of the
Fund. They may apply for a Fund award through local counsel.
The Order credits their work. Compensation flows through their
local counsel of record.
The Order calls for a filing. A Hawaiʻi-licensed attorney
submits the application. That’s the entire burden on the
attorney without a Hawaiʻi license.
The clause is not implicated. The Order draws no residency
line. It requires a voluntary filing. That is not
“sufficiently basic to the livelihood of the Nation as to fall
within the purview of the Privileges and Immunities Clause.”
Friedman, 487 U.S. at 64 (cleaned up).
The pro hac vice cases do not change the result. Piper and
Frazier v. Heebe, 482 U.S. 641 (1987), treat pro hac vice as an
inadequate substitute for full bar membership. The Order does
not touch admission or the right to practice.
Even were the clause implicated, the filing condition would
satisfy Piper’s substantial-reason test. Hawaiʻi counsel are
subject to this Court’s supervision. The Order’s condition
governs who files. It fits within the broader principle that
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states retain authority to regulate the practice of law within
their borders. Leis v. Flynt, 439 U.S. 438, 442 (1979).
Under Rule 1.9 of the Rules of the Supreme Court of the
State of Hawaiʻi (RSCH), attorneys not licensed to practice in
Hawaiʻi must appear through local counsel. Local counsel of
record must sign and file every pleading, motion, and brief.
RSCH Rule 1.9(d). The Board application is one such filing.
The clause is satisfied.
E. The Remaining Constitutional Theories
The constitutional theories that remain do not require
separate resolution. Strip away the labels. They are just the
authority and discretion challenges we have already answered.
The schedule is called a denial of equal protection because
it allows a larger percentage from clients who retained counsel
before August 19, 2024 than from those who retained later. The
distinction draws no suspect classification and burdens no
fundamental right. So it stands if any rational basis supports
it. F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993).
There is a rational basis. The date tracks the term sheet
that opened the path to a global settlement and the court’s
order setting the mechanism for resolving the subrogation liens.
Firms that took cases early and drove them toward trial carried
more risk and did more to build the settlement.
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Since two claimants with the same loss may pay different
rates based on the date they signed, Appellants recast the cutoff as discrimination among the claimants themselves. Viewed
that way, or as a line among lawyers, the classification draws
the same rational-basis review. The same reason answers it:
the date marks when the settlement path was in view. See supra
Part VI.A.
The separation of powers claim is the jurisdictional attack
renamed. Designing and supervising a common fund, appointing an
aide to help review applications, and entering the judgments
that pay fees are traditional judicial tasks. The claim fails
for the reasons given in Part IV.
Appellants have a further separation of powers argument.
This one is about our authority. Our authority they say,
extends to the practice of law and the reasonableness of fees
under HRPC Rule 1.5. See HRS § 605-1 (Supp. 2019). The Order,
they maintain, is a local rule of professional conduct for one
proceeding. Only this court may set such rules.
Appellants have the scope right. The Order does not amend
Rule 1.5, discipline a lawyer, or announce fee standards for the
Hawaiʻi bar. It sets fees from the settlement and the Fund in
this case. See Alexander & Baldwin, 151 Hawaiʻi at 49, 508 P.3d
at 844 (trial courts have inherent and statutory powers over the
practice of law and may exercise them in a case before them).
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Trial courts do that all the time, under fee-shifting
statutes, in probate, in class actions, in common fund cases.
No one supposes each such award intrudes on this court’s
authority over the bar. Setting a fee in a pending matter is
judicial power. This court alone regulates who practices and
how.
The delegation claim comes out the same way. Board awards
are subject to the supervising court’s review. There the review
ends. The judicial power remains with the court.
The retroactivity and professional-conduct theories restate
already rejected grounds. Strip those away, and the
constitutional labels add nothing.
VII.
The Order Re: Attorney Fees, as amended, is affirmed as
modified.
The circuit court had authority to enter the Order. The
three anti-appeal provisions are vacated: the finality
declaration, the void-on-appeal clause, and the above-cap
payment freeze. The remaining challenges do not merit relief.
The petition for writs of mandamus and prohibition, SCPW-26-0000480, is dismissed as moot by separate order.
The case is remanded to the Circuit Court of the Second
Circuit for further proceedings consistent with this opinion.
The Board’s awards are subject to review in that court. Above45
*** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***
cap orders, together with the judgments entered on them, are
subject to the ordinary appeal HRS § 641-1 provides.
Samuel P. Shnider and /s/ Sabrina S. McKenna Anthony L. Ranken (Alex A.
Edrenkin and John E. Thickstun /s/ Todd W. Eddins on the briefs)
for appellants /s/ Lisa M. Ginoza
Cynthia K. Wong, William M. /s/ Kevin T. Morikone McKeon, and Aimee M. Lum
for appellees “Certain /s/ Taryn R. Tomasa Individual Plaintiffs”
Michael L. Lam
(Steven E. Tom and Amanda J.
Weston on the briefs)
for appellee State of Hawaiʻi
Lance D. Collins
for appellees “Certain
Individual Plaintiffs”
46