Sections 661-1 to 661-12 designated as Part I pursuant to 23G-15.


661-1 Jurisdiction. The several circuit courts of the State and, except as otherwise provided by statute or rule, the several state district courts, subject to appeal as provided by law, shall have original jurisdiction to hear and determine the following matters, and, unless otherwise provided by law, shall determine all questions of fact involved without the intervention of a jury:

(1) All claims against the State founded upon any statute of the State; upon any rule of an executive department; or upon any contract, expressed or implied, with the State, and all claims which may be referred to any such court by the legislature; provided that no action shall be maintained, nor shall any process issue against the State, based on any contract or any act of any state officer that the officer is not authorized to make or do by the laws of the State, nor upon any other cause of action than as herein set forth; and

(2) All counterclaims, whether liquidated or unliquidated, or other demands whatsoever on the part of the State against any person making claim against the State under this part. [L 1894-5, c 26, 1; RL 1925, 2669; am L 1929, c 213, 1; RL 1935, 4420; RL 1945, 10475; RL 1955, 245-1; HRS 661-1; am L 1972, c 164, 1(a); am L 1978, c 156, 1; am L 1979, c 152, 1; am L 1984, c 135, 2; am L 2016, c 55, 41]


Cross References


Costs, bond, when State a party, see 607-24.

Money paid under protest, suit to recover, see 40-35.


Rules of Court


Counterclaim, see HRCP rule 13.

Costs, bond, when State a party, see HRCP rules 54(d), 62(e).


Case Notes


A suit to restrain unconstitutional act of state officer is not suit against the State. 402 F. Supp. 95 (1975).

No defense of sovereign immunity, including Eleventh Amendment, can be raised as to actions under this chapter if the applicable consent section is 661-11. 512 F. Supp. 889 (1981).

This section and 662-2 did not constitute a waiver of defendants' Eleventh Amendment immunity where plaintiffs contended that defendants' failure to provide sufficient Hawaiian language in Hawaii's public schools violated state and federal laws. 951 F. Supp. 1484 (1996).

Nothing in the language of this section and 662-3 suggests that Hawaii intended to subject itself to suit in federal court. 950 F. Supp. 2d 1159 (2013).

Public officer making government contracts, not personally liable. 2 H. 433 (1861); 5 H. 383 (1885).

Suit by way of mandamus against state officer to do what a statute requires of officer is not a suit against the State. 7 H. 470 (1888). Suit against Commissioner of Public Lands to rescind lease made with another not suit against the State. 40 H. 675, 686 (1955). Suit for recovery of money illegally exacted and already paid over is suit against State. 11 H. 10 (1897). See 40-35.

Where salary has been paid to de facto officer acting under color of title, de jure officer cannot recover from government salary of office while he was out of same. 9 H. 311 (1893).

Hawaiian government not liable for conversion of private fund by one of its employees acting outside scope of his official duties. 10 H. 607 (1897).

Government consenting to be sued may do so upon such terms and conditions as it pleases. 11 H. 10 (1897).

Statute not unconstitutional on ground that jury is denied. 11 H. 10 (1897). Nor on ground that it is retrospective. 11 H. 404 (1898). See 11 H. 566 (1898); 13 H. 465 (1901); 17 H. 285 (1906), rev'd 206 U.S. 206 (1907).

State not liable for injuries from defective streets. 13 H. 478 (1901) (prior to enactment of chapter 662). Ejectment does not lie against government. 13 H. 1 (1900). Partition does not lie when State claims absolute title. 48 H. 92, 395 P.2d 620 (1964). State cannot be made party to suit to foreclose mortgage. 17 H. 82 (1905), aff'd 205 U.S. 349 (1907). State not liable for extras except in accordance with contract. 16 H. 711 (1905). See 27 H. 792 (1924).

Waiver by statute. 33 H. 379 (1935); 33 H. 409 (1935); 34 H. 213 (1937).

Implied contract. 36 H. 75 (1942); 43 H. 28 (1958) (prior to enactment of chapter 662).

Suit against government agency in private capacity as trustee. 37 H. 8 (1944).

Claim under 101-27 may not be made subject of collateral suit against State under this section. 49 H. 365, 369-370, 418 P.2d 482 (1966).

Proceeding against property in which State has an interest is suit against State and cannot be maintained without consent of State. 50 H. 207, 436 P.2d 527 (1968); 49 H. 365, 418 P.2d 482 (1966); 51 H. 87, 451 P.2d 809 (1969).

Implied contract for State to pay taxpayer earnings on protested, paid tax. 56 H. 655, 547 P.2d 581 (1976).

Sovereign immunity held to preclude suit against State based on chapter 480. 60 H. 228, 588 P.2d 430 (1978).

Where plaintiffs seek injunction for unconstitutional acts and damages, sovereign immunity bars suit. 68 H. 192, 708 P.2d 129 (1985), cert. denied, 476 U.S. 1169 (1986).

An order denying a pretrial motion based on sovereign immunity is not a final judgment, therefore, not appealable. 71 H. 519, 795 P.2d 283 (1990).

Further waiver of sovereign immunity not necessary for 607-14 to apply to the State and its agencies in matters in which, by virtue of the express waiver of sovereign immunity set forth in this section, the State has become a party. 87 H. 37, 951 P.2d 487 (1998).

Insofar as the State has not expressly and statutorily waived its sovereign immunity from postjudgment interest in suits brought pursuant to this section, the State is immune from awards of 478-3 postjudgment interest in actions under this section; thus, the trial court erred in ordering that the employees' retirement system pay statutory interest at the rate of ten per cent per annum, pursuant to 478-3. 106 H. 416, 106 P.3d 339 (2005).

Where ocean recreation management area permit at issue was a revocable license rather than a contract, this section was not a basis for subject matter jurisdiction. 113 H. 184, 150 P.3d 833 (2006).

Where 343-7 waived the State's sovereign immunity against actions brought to challenge: (1) the lack of an environmental assessment; (2) the determination that an environmental impact statement is or is not required; and (3) the acceptance of an environmental impact statement, sovereign immunity did not prevent the application of the private attorney general doctrine against the State and the circuit court did not err in relying on the doctrine as a basis for its award of attorney's fees against the State and Superferry jointly. 120 H. 181, 202 P.3d 1226 (2009).

Plaintiffs had to demonstrate a waiver of sovereign immunity specifically over attorneys' fees because plaintiffs did not implicate this section (case did not arise under this section) or any statutory waiver of sovereign immunity; rather plaintiffs' case involved claims for declaratory and injunctive relief based on alleged constitutional violations by defendant State and state officials. 130 H. 162, 307 P.3d 142 (2013).

Does not confer jurisdiction on insurer actions to recover moneys paid to the State without protest under 431-318. 5 H. App. 122, 678 P.2d 1104 (1984).

Suit authorized as one based on implied contract of warranty of authority. 5 H. App. 616, 705 P.2d 72 (1985).

Suit to recover public assistance benefits wrongfully denied is a claim against State founded upon any statute. 6 H. App. 160, 715 P.2d 813 (1986).

As the doctrine of primary jurisdiction applies to claims against the employees' retirement system arising out of alleged miscalculation of retirement contribution and benefits, while the circuit court had original jurisdiction over the claim, the court did not abuse its discretion in staying, rather than dismissing, the class action pending administrative review of plaintiffs' individual claims. 121 H. 462 (App.), 220 P.3d 1043 (2009).

While the accrual and extent of an employee's benefits are governed by the applicable statutory provisions of chapter 88, the duty of the employees' retirement system to pay accrued benefits is deemed to be contractual under article XVI, 2 of the Hawaii constitution; thus, a circuit court's jurisdiction under paragraph (1) over such claims is "founded upon contract", as well as statute and the circuit court did not err in rejecting defendant's contention that plaintiffs' claims were barred by sovereign immunity. 121 H. 462 (App.), 220 P.3d 1043 (2009).

As this section contains a limited waiver of sovereign immunity for claims against the State that are founded upon a statute or founded upon a contract with the State, the circuit court did not err when it allowed plaintiff substitute teachers to pursue breach-of-contract claims against the State where the teachers were in a contractual relationship with the State, sought money that they claimed were due them for the work they performed under the contract, and alleged that under the express and implied terms of their agreement, they were entitled to pay in accordance with 302A-624(e). 122 H. 150 (App.), 223 P.3d 215 (2009).

The State's sovereign immunity from plaintiff substitute teachers' claims against the State was waived under this section and 302A-624(e) where 302A-624(e) stated that the per diem salary for substitute teachers "shall be" based on the formula that it described, and 302A-624(e), as a pay-mandating statute, provided an alternative basis for invoking the court's jurisdiction under the "founded upon any statute" language in this section. 122 H. 150 (App.), 223 P.3d 215 (2009).



Previous Vol13_Ch0601-0676 Next