[PART I. 
GENERAL PROVISIONS]



 



Note



 



  Sections 661-1 to 661-12 designated as Part I by revisor.



 



§661-1  Jurisdiction.  The several
circuit courts of the State and, except as otherwise provided by statute or
rule, the several state district courts shall, subject to appeal as provided by
law, 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; or upon any regulation 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 which 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.



(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 chapter. [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]



 



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.



  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.



  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.



  Public officer making government contracts, not personally
liable.  2 H. 433; 5 H. 383.  Hawaiian government not liable for conversion of
private fund by one of its employees acting outside scope of his official
duties.  10 H. 607.



  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.



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



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



  Waiver by statute.  33 H. 379; 33 H. 409; 34 H. 213.  Implied
contract.  36 H. 75; 43 H. 28 (prior to enactment of chapter 662).



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



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



  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.  Suit
against Commissioner of Public Lands to rescind lease made with another not
suit against the State.  40 H. 675, 686.  Suit for recovery of money illegally
exacted and already paid over is suit against State.  11 H. 10.  See §40-35.



  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; 49 H. 365, 418 P.2d 482; 51 H. 87, 451 P.2d 809.



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



  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.



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



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



  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.



  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.



  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.



  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.



  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.



  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 1101.



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



  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.



 



Decisions under prior law.



  Suit against government under old laws.  1 H. 266; 7 H. 715. 
Actions for tort under 1888 statute.  8 H. 546; 9 H. 101.  Effect of 1895
statute, prior to enactment of chapter 662.  13 H. 1, 3; 13 H. 478, 479.