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Kaho'ohanohano v. State Page 22 of 46
<br /> "[t]hat [the Pte] holding recognizes that suits against state officials in their official capacity are really suits against
<br /> the State, and that injunctions against such officials are really injunctions against the State."
<br /> In Paty, this court reiterated that sovereign immunity will not be a bar where governmental action is challenged as
<br /> unconstitutional.
<br /> It is the unquestioned rule that the State cannot be sued without its consent or waiver of its immunity in matters "involving the
<br /> enforcement of contracts,treasury liability for tort,and the adjudication of interest[sic]in property which has come unsullied by tort
<br /> into the bosom of government." . . . [However,] sovereign immunity may not be invoked as a defense by state officials who comprise an
<br /> executive department of government when their action is attacked as being unconstitutional.
<br /> Paty, 73 Haw. at 607, 837 P.2d at 1265 (quoting W.H. Greenwell, Ltd., 50 Haw. 207, 208-09, 436 P.2d 527, 528
<br /> (1968)) (emphasis added). Although we have repeatedly noted that sovereign immunity will not bar claims against
<br /> officials from the executive department, there is no indication from these cases that a suit against the State will be
<br /> barred absent the naming of an executive department official, and the State does not cite to any additional case law
<br /> that supports this proposition. Further as Trustees note, a suit against a state official acting in his official capacity is
<br /> essentially a suit against the State. See id. at 601, 837 P.2d at 1262 (where the Pele Defense Fund brought suit against
<br /> executive officials acting in their official capacities, the Defense fund had a right to bring suit under the Hawaii
<br /> Constitution to "prospectively enjoin the State"). Thus, Trustees' failure to name a State official in its complaint will
<br /> not, in and of itself, invoke the sovereign immunity doctrine.
<br /> XXX.
<br /> In relation to the State's argument(7), the State asserts that "Trustees' action against the State is barred by the [two]-
<br /> year statute of limitations set forth in HRS § 661-5" inasmuch as "Trustees' action against the State, if cognizable at
<br /> all, accrued on June 30, 1999 (the date that Act 100 took effect) and expired on June 30, 2001, two years later" and
<br /> "Trustees did not file their action against the State until after June 30, 2001." HRS § 661-5 provides as follows:
<br /> Every claim against the State,cognizable under this chapter, shall be forever barred unless the action is commenced within two years
<br /> after the claim first accrues;provided that the claims of persons under legal disability shall not be barred if the action is commenced
<br /> within one year after the disability has ceased.
<br /> (Emphasis added.) Thus, HRS § 661-5 plainly creates a two-year statute of limitation on "claim[s] against the State,
<br /> cognizable under [HRS chapter 661.]" The jurisdictional section of HRS chapter 661, HRS § 661-1 (1993), provides:
<br /> The several circuit courts of the State and,except as otherwise provided by statute or rule,the several state district courts shall, subject
<br /> to appeal as provided by law,have original jurisdiction to hear and determine the following matters,and,unless otherwise provided by
<br /> law, shall determine all questions of fact involved without the intervention of a jury.
<br /> (1) All claims against the State founded upon any statute of the State;or upon any regulation of an executive department;or
<br /> upon any contract,expressed or implied,with the State,and all claims which may be referred to any such court by the
<br /> legislature;provided that no action shall be maintained,nor shall any process issue against the State,based on any contract
<br /> 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'
<br /> cause of action than as herein set forth.
<br /> (Emphases added.)
<br /> As the State acknowledged in its January 10, 2003 motion for summary judgment, Trustees "are alleging in this
<br /> lawsuit that Act 100 is unconstitutional as being violative of[a]rticle XVI, [s]ection 2 of the Hawaii
<br /> Constitution." (Emphasis added.) Trustees' constitutional claims are plainly not "founded upon any statute of the State;
<br /> or upon any regulation of an executive department; or upon any contract" and were not "referred to [the] court by the
<br /> legislature[.]" HRS § 661-1(1); cf. Vail v. Employees' Ret. Sys. of the State of Hawaii, 75 Haw. 42, 52-57, 856 P.2d
<br /> 1227, 1233-36, (1993) (concluding that the statute of limitations contained in HRS § 661-5 was applicable to the
<br /> plaintiff s claim founded upon a state statute, HRS § 88-42 (1993)). Thus, Trustees' claims are not "cognizable under
<br /> [HRS chapter 661]," HRS § 661-5, and, therefore, are not subject to the statute of limitations set forth in HRS § 661-5.
<br /> Accordingly, the State's argument(7)is rejected.
<br /> XXXI.
<br /> http://www.state.hi.us/jud/opinions/sct/2007/26178.htm 8/12/2008
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