FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-APR-2023
08:04 AM
Dkt. 91 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
---o0o---
WAYNE OKUTSU, Plaintiff-Appellant
v.
STATE OF HAWAI#I, Defendant-Appellee,
and
JOHN DOES 1-5, Defendants
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC171000409)
APRIL 12, 2023
LEONARD, PRESIDING JUDGE, HIRAOKA AND MCCULLEN, JJ.
OPINION OF THE COURT BY HIRAOKA, J.
Plaintiff-Appellant Wayne Okutsu sued Defendant-Appellee State of Hawai#i under the State Tort Liability Act
(STLA), Hawaii Revised Statutes (HRS) Chapter 662. The STLA
requires that a non-medical tort action be commenced within two
years after the claim accrues. The State moved to dismiss based
FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
upon the STLA statute of limitations. The Circuit Court of the
First Circuit granted the motion.1
Okutsu appealed. He contends that the State waived the
statute of limitations, that the time bar should have been
equitably tolled, or that there were genuine issues of material
fact about waiver or equitable tolling. We hold that the time
bar imposed by the legislature is jurisdictional; it is not
subject to waiver by, or equitable tolling based upon conduct of,
the executive branch. Okutsu's lawsuit was filed more than two
years after his tort claim accrued. Accordingly, we affirm the
Final Judgment entered by the circuit court on May 16, 2018.
I. BACKGROUND
Okutsu had been incarcerated in a Hawai#i correctional
facility. His complaint, seeking tort damages from the State,
was filed on March 9, 2017. It alleged that the State
negligently held Okutsu for 49 days after his release date. The
record isn't clear about when Okutsu should have been released
from custody, or when he was actually released.2 However, there
is no dispute that Okutsu was actually released some time in 2012
— more than four years before he filed his complaint.
The State filed a motion to dismiss pursuant to Hawai#i
Rules of Civil Procedure (HRCP) Rule 12(b)(6).3 The State
1
The Honorable Virginia Lea Crandall presided.
2
Okutsu's complaint alleged that the State's "acts of negligence
occurred beginning about February, 2012[.]" The Hawaii Paroling Authority set
Okutsu's minimum term to expire on July 17, 2012. By letter dated
February 16, 2012, the Department of Public Safety informed Okutsu that it had
recalculated his "maximum term release dates[.]" Okutsu's memorandum in
opposition to the State's motion to dismiss states that he was released on
September 11, 2012, but there is no declaration or exhibit in the record
supporting the allegation. The 49th day before September 11, 2012, is
July 24, 2012.
3
HRCP Rule 12(b) provides, in relevant part:
Every defense, in law or fact, to a claim for relief in any
pleading, . . . shall be asserted in the responsive pleading
thereto if one is required, except that the following
defenses may at the option of the pleader be made by motion:
(continued...)
2
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contended that Okutsu's action was barred by the STLA's two-year
statute of limitations. Okutsu's memorandum in opposition
attached a declaration from his attorney, Jack Schweigert, and a
number of emails between Schweigert and former deputy attorney
general John F. Molay. Okutsu argued: the State, through Molay,
had waived the statute of limitations; the statute of limitations
should be equitably tolled because of Molay's conduct; or
alternatively, there were genuine issues of material fact about
waiver or equitable tolling.
The State's reply memorandum attached a declaration
from Molay and copies of more communication between Molay and
Schweigert. Schweigert was representing a number of clients who
had over-detention claims against the State. The State conceded
that Molay agreed not to assert the statute of limitations
defense against certain of Schweigert's over-detention clients,
but argued that Okutsu wasn't one of them.
The State's motion was heard on June 19, 2017. The
circuit court took the motion under advisement. On October 2,
2017, the court entered the "Order Granting Defendant State of
Hawaii's Motion to Dismiss Complaint Seeking Damages[.]" This
appeal followed. After Okutsu's notice of appeal was filed, we
temporarily remanded for entry of an appealable final judgment
pursuant to HRS § 602-57(3) (2016) and Waikiki v. Ho#omaka Vill.
Ass'n of Apartment Owners, 140 Hawai#i 197, 204, 398 P.3d 786,
793 (2017). The circuit court entered the Final Judgment on
May 16, 2018.
II. POINTS OF ERROR
Okutsu's opening brief argues that the circuit court
erred by granting the State's motion to dismiss because: (1) the
State waived the statute of limitations; (2) the statute of
limitations should have been equitably tolled; or (3) there was a
3
(...continued)
. . . (6) failure to state a claim upon which relief can be
granted[.]
3
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genuine issue of material fact about whether the statute of
limitations was waived or should be equitably tolled. After
briefing was completed we issued an order, pursuant to Hawai#i
Rules of Appellate Procedure (HRAP) Rule 28(b)(4),4 inviting
supplemental briefing "on the legal issue of whether the
executive branch can waive the HRS § 662-4 time bar on the
State's waiver of sovereign immunity." Neither party filed a
supplemental brief.
III. STANDARDS OF REVIEW
A. Motion to Dismiss
The State's motion to dismiss was filed under HRCP
Rule 12(b)(6). Okutsu's memorandum in opposition and the State's
reply memorandum both presented matters outside the pleadings
that weren't excluded by the circuit court. Thus, we review the
circuit court's decision using the standard applicable to
HRCP Rule 56 motions for summary judgment. HRCP Rule 12(b).5
An appellate court reviews a trial court's grant of
summary judgment de novo using the same standard applied by the
trial court. Nozawa v. Operating Engineers Local Union No. 3,
142 Hawai#i 331, 338, 418 P.3d 1187, 1194 (2018). Summary
judgment is appropriate if the pleadings, depositions, answers to
4
HRAP Rule 28(b)(4) provides, in relevant part:
If an appellate court, when acting on a case on appeal,
contemplates basing the disposition of the case wholly or in
part upon an issue of plain error not raised by the parties
through briefing, it shall not affirm, reverse, or vacate
the case without allowing the parties the opportunity to
brief the potential plain-error issue prior to disposition.
5
HRCP Rule 12(b) provides, in relevant part:
If, on a motion asserting the defense numbered (6) to
dismiss for failure of the pleading to state a claim upon
which relief can be granted, matters outside the pleading
are presented to and not excluded by the court, the motion
shall be treated as one for summary judgment and disposed of
as provided in Rule 56, and all parties shall be given
reasonable opportunity to present all material made
pertinent to such a motion by Rule 56.
4
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interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law. Id. at 342, 418 P.3d at 1198. Moreover, an
appellate court "may affirm a grant of summary judgment on any
ground appearing in the record, even if the circuit court did not
rely on it." Reyes v. Kuboyama, 76 Hawai#i 137, 140,
870 P.2d
1281, 1284 (1994) (citations omitted).
B. Statutory Interpretation
"The interpretation of a statute is a question of law
reviewable de novo." Taylor-Rice v. State, 105 Hawai#i 104, 108,
94 P.3d 659, 663 (2004) (cleaned up).
IV. DISCUSSION
"[T]he State's liability is limited by its sovereign
immunity, except where there has been a 'clear relinquishment' of
immunity and the State has consented to be sued." In re
Arbitration Between Hawai#i State Teachers Association and State
Dep't of Educ., 140 Hawai#i 381, 396, 400 P.3d 582, 597 (2017)
(quoting Taylor-Rice, 105 Hawai#i at 109,
94 P.3d at 664). The
term sovereign immunity "refers to the general rule, incorporated
in the Eleventh Amendment to the United States Constitution, that
a state cannot be sued in federal court without its consent or an
express waiver of its immunity. The doctrine also precludes such
suits in state courts."
Id. (quoting Nelson v. Hawaiian Homes
Comm'n, 130 Hawai#i 162, 168,
307 P.3d 142, 148 (2013)).
A. The legislature's two-year limitation on the
State's relinquishment of sovereign immunity
cannot be waived by, or tolled by the conduct
of, the executive branch.
The Territory of Hawai#i relinquished sovereign
immunity from tort liability in 1957. The legislature passed
Act 312, titled "An Act Creating a New Chapter to Permit Tort
Claims Against the Territory of Hawaii." 1957 Haw. Sess. Laws
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Act 312, at 384-86. Act 312 was codified in Revised Laws of
Hawaii (RLH) Chapter 245A and was given the short title
"Territorial Tort Liability Act" (TTLA). It included this
provision:
§ 245A-2. Waiver and liability of Territory. The
Territory hereby waives its immunity for liability for the
torts of its employees and shall be liable in the same
manner and to the same extent as a private individual under
like circumstances, but shall not be liable for interest
prior to judgment or for punitive damages. If, however, in
any case wherein death was caused, the Territory shall be
liable only for actual or compensatory damages measured by
the pecuniary injuries resulting from such death to the
persons respectively, for whose benefit the action was
brought.
RLH § 245A-2 (Supp. 1957).
The TTLA contained a statute of limitations:
§ 245A-4. Statute of limitation. A tort claim
against the Territory of Hawaii shall be forever barred
unless action is begun within two years after such claim
accrues.
RLH § 245A-4 (Supp. 1957).
The TTLA was renamed the State Tort Liability Act in
1960.6 When the Hawaii Revised Statutes were published in 1968,
the STLA was codified as HRS Chapter 662. Other than changing
the word "Territory" to "State," HRS § 662-4 (1968) was identical
to RLH § 245A-4 (Supp. 1957).
In 1976, the legislature amended HRS § 662-4 by adding
an exception to the two-year time bar for medical tort claims.
1976 Haw. Sess. Laws Act 219, § 16 at 539; see Savini v. Univ. of
Haw., 113 Hawai#i 459, 466, 153 P.3d 1144, 1151 (2007)
(recognizing that 1976 amendment to HRS § 662-4 lengthened the
limitation period for medical malpractice claims against the
State). HRS § 662-4 hasn't been amended since 1976, and
currently provides:
6
Hawai#i became a state in 1959. Kalima v. State, 111 Hawai#i 84,
87, 137 P.3d 990, 993 (2006) ("[T]he Territory of Hawai#i became a state on
August 1, 1959[.]")
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§662-4 Statute of limitations. A tort claim against
the State shall be forever barred unless action is begun
within two years after the claim accrues, except in the case
of a medical tort claim when the limitation of action
provisions set forth in section 657-7.3 shall apply.[7]
HRS § 662-4 (2016).
The two-year limitation on the State's relinquishment
of sovereign immunity for non-medical torts is a term of the
legislature's consent for the State to be sued in tort. As the
United States Supreme Court explained:
Most statutes of limitations seek primarily to protect
defendants against stale or unduly delayed claims. Thus,
the law typically treats a limitations defense as an
affirmative defense that the defendant must raise at the
pleadings stage and that is subject to rules of forfeiture
and waiver. Such statutes also typically permit courts to
toll the limitations period in light of special equitable
considerations.
Some statutes of limitations, however, seek . . . to
achieve a broader system-related goal, such as . . .
limiting the scope of a governmental waiver of sovereign
immunity . . . . The Court has often read the time limits
of these statutes as more absolute, say, as requiring a
court to decide a timeliness question despite a waiver, or
as forbidding a court to consider whether certain equitable
considerations warrant extending a limitations period. As
convenient shorthand, the Court has sometimes referred to
the time limits in such statutes as "jurisdictional."
John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-34,
128 S. Ct. 750, 753,
169 L. Ed. 2d 591 (2008) (emphasis added)
(citations omitted). The legislature did not consent to the
State being sued for a non-medical tort more than two years after
the claim accrued. The statutory time limitation on the State's
relinquishment of sovereign liability can only be extended by the
legislature. See W.C. Peacock & Co. v. Republic of Hawaii,
11
Haw. 404, 406 (Haw. Rep. 1898) (holding that "special permission
from the . . . Legislature" was required to waive statute of
limitations for contract claims against the government); United
States v. Dalm,
494 U.S. 596, 610,
110 S. Ct. 1361, 1369,
108 L.
7
Okutsu's complaint did not allege a medical tort claim.
7
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Ed. 2d 548 (1990) ("If any principle is central to our
understanding of sovereign immunity, it is that the power to
consent to such suits is reserved to Congress."); see also In re
Haw. State Teachers Ass'n, 140 Hawai#i at 396-97, 400 P.3d at
597-98 ("[A] waiver of sovereign immunity must be unequivocally
expressed in statutory text . . . [and] it is not a court's right
to extend the waiver of sovereign immunity more broadly than has
been directed by the legislature[.]") (emphasis added) (cleaned
up). The HRS § 662-4 statute of limitations is thus
jurisdictional. It cannot be waived by the executive branch, nor
is it subject to equitable tolling because of the executive
branch's conduct. Thus, the circuit court had no jurisdiction
over Okutsu's lawsuit, which was filed more than two years after
his claim accrued.
B. The plain language of HRS § 662-4 shows that
the statute of limitations cannot be waived
by the executive branch.
Hawai#i has adopted this guidance from federal law to
determine whether the State has waived its sovereign immunity:
(1) a waiver of the Government's sovereign immunity will be
strictly construed, in terms of its scope, in favor of the
sovereign; (2) a waiver of sovereign immunity must be
unequivocally expressed in statutory text; (3) a statute's
legislative history cannot supply a waiver that does not
appear clearly in any statutory text; (4) it is not a
court's right to extend the waiver of sovereign immunity
more broadly than has been directed by the legislature; and
(5) sovereign immunity is not to be waived by policy
arguments.
In re Haw. State Tchrs. Ass'n, 140 Hawai#i at 396–97, 400 P.3d at
597–98 (cleaned up).
The language of HRS § 662-4 unequivocally limits the
State's waiver of sovereign immunity for non-medical torts to
actions "begun within two years after the claim accrues[.]" The
statute makes no provision for waiver of the two-year period.
The executive branch cannot unilaterally broaden the statutory
waiver beyond the two-year limitation period, after which non-
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medical tort claims are unequivocally "forever barred[.]" Nor
does HRS § 662-4 make any provision for tolling. Whittington v.
State, 72 Haw. 77, 78,
806 P.2d 957, 957 (1991). Accordingly,
the HRS § 662-4 two-year limitation on the State's relinquishment
of sovereign immunity against liability for non-medical tort
claims is not subject to waiver by, or equitable tolling based
upon conduct of, the executive branch.
C. Judicial precedent indicates that the
legislature did not intend that the statute
of limitations could be waived by, or tolled
by acts or omissions of, the executive
branch.
In 1898, the Supreme Court of the Republic of Hawai#i
considered Act 26 of the Laws of the Republic (1895).8 Act 26
provided, in relevant part:
Every claim against this Government, cognizable as
aforesaid, shall be forever barred unless the petition
setting forth a statement thereof is filed in the Court, or
transmitted to it by the Secretary of the Senate or the
Clerk of the House of Representatives, as provided by law,
within two years after the claim first accrues.
W.C. Peacock & Co., 11 Haw. at 407 (quoting 1895 Laws of the
Republic Act 26, § 5. The plaintiff in W.C. Peacock & Co. sought
recovery of customs duties paid under protest from February 11,
1893, to January 8, 1894. Suit was filed on April 29, 1897 (more
than two years after the last payment). The supreme court raised
the statute of limitations issue sua sponte. The attorney
general stated that the statute of limitations had been waived.
Id. But the supreme court held that the statute of limitations
couldn't be waived by the executive branch because "the
Legislature alone had authority to determine what actions may or
may not be brought against the Government . . . the Legislature
being the proper mouth-piece of the State in matters of this
8
Act 26 and its progeny did not afford a remedy for tort claims
against the government. See Meyer v. Territory of Hawaii, 36 Haw. 75, 77-78
(Haw. Terr. 1942) (applying RLH § 4420 (1935)).
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kind." Id. at 405. The court explained:
In this respect an action against the Government
differs from an action against a private person. There is
no right to sue the State except so far as permitted by the
State, and if the State has permitted actions to be brought
against it only within a certain time, the court should not
entertain an action brought after the expiration of that
time. But an action may be brought against a private person
and the court may entertain it without special permission
from the State through its Legislature[] — the statute
limiting this right being merely a defense which the
defendant may insist on or waive at his pleasure.
Id. at 406 (emphasis added) (citation omitted); Cf. Kinney v.
Territory of Hawaii, 34 Haw. 213, 214-15 (Haw. Terr. 1937)
(holding that legislature waived statute of limitations, RLH
Chapter 127 § 4424 (1935), by enacting specific legislation
allowing plaintiffs to pursue lawsuit against Territory more than
two years after their claim had accrued, as found by trial
court).
Act 26 was amended and codified as § 1534 of Chapter 98
("Suits by and Against the Hawaiian Government") of The Civil
Laws of the Hawaiian Islands (1897). The statute, as amended,
retained the "shall be forever barred" language:
Every claim against this Government, cognizable as
aforesaid, shall be forever barred unless the petition
setting forth a statement thereof is filed in the Court, or
transmitted to it by the Secretary of the Senate or the
Clerk of the House of Representatives, as provided by law,
within two years after the claim first accrues. Provided,
that the claims of persons under legal disability shall not
be barred if the petition be filed in the Court or
transmitted, as aforesaid, within one year after the
disability has ceased.
The statute was recodified as § 2004 of Chapter 129
("Suits by and Against the Government") of the Revised Laws of
Hawaii (1905), with non-substantive changes; the "shall be
forever barred" language was again retained. The statute was
recodified several more times, each time retaining the "shall be
forever barred" language used in Act 26. See RLH Chapter 148
§ 2667 (1915); RLH Chapter 152 § 2673 (1925); RLH Chapter 127
§ 4424 (1935); RLH Chapter 220 § 10479 (1945); RLH § 245-5
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(1955); HRS § 661-5 (1976). The statute currently reads:
§661-5 Limitations on action. Every claim against the
State, cognizable under this part, shall be forever barred
unless the action is commenced within two years after the
claim first accrues; provided that the claims of persons
under legal disability shall not be barred if the action is
commenced within one year after the disability has ceased.
HRS § 661-5 (2016).
When the legislature enacted the TTLA in 1957, it used
the same "shall be forever barred" language as the statute of
limitations governing contract claims against the Territory, RLH
§ 245A-4 (Supp. 1957), which the Supreme Court of the Republic of
Hawaii held to be jurisdictional in Peacock, 11 Haw. at 405-06.
The legislature is presumed to know the law, including the
supreme court's interpretations of statutory language, when
enacting or amending statutes. State v. Casugay-Badiang, 130
Hawai#i 21, 27,
305 P.3d 437, 443 (2013) (first quoting State v.
Reis, 115 Hawai#i 79, 97,
165 P.3d 980, 998 (2007); and then
citing Territory of Hawaii v. Ota,
36 Haw. 80, 98–99 (Haw. Terr.
1942) ("While . . . legislative inaction does not amount to
legislative construction, it does indicate a lack of active
disagreement with [judicial interpretation] . . . .
[L]egislative inaction tends to indicate agreement.")). Where
the legislature fails to act in response to the supreme court's
statutory interpretation, that statutory interpretation must be
considered to have the legislature's tacit approval. See, e.g.,
State v. Hussein, 122 Hawai#i 495, 529, 229 P.3d 313, 347 (2010)
(citing Gray v. Admin. Dir. of the Cts., 84 Hawai#i 138, 143 n.9,
931 P.2d 580, 585 n.9 (1997)); State v. Dannenberg,
74 Haw. 75,
83,
837 P.2d 776, 780 (1992), superseded by statute on other
grounds, 1993 Haw. Sess. Laws Act 130, § 1 at 183-84, as
recognized in State v. Klie, 116 Hawai#i 519,
174 P.3d 358
(2007). The legislature's use of the "shall be forever barred"
language in the HRS Chapter 662 statute of limitations indicates
the legislature's agreement that only it can extend the statute
of limitations applicable to tort claims against the State.
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D. Under the analogous Federal Tort Claims Act,
the "shall be forever barred" statute of
limitations is jurisdictional and cannot be
waived.
The STLA is modeled on the Federal Tort Claims Act,
(FTCA), 28 U.S.C. §§ 1346(b), 1402(b), 2401(b), 2671-2680. Doe
Parents No. 1 v. State Dep't of Educ., 100 Hawai#i 34, 59,
58
P.3d 545, 570 (2002). Accordingly, we may turn to federal case
law construing the FTCA for guidance in construing the STLA.
Id.
at 59–60, 58 P.3d at 570–71.
The FTCA's statute of limitations is materially
identical to that of the STLA:
A tort claim against the United States shall be forever
barred unless it is presented in writing to the appropriate
Federal agency within two years after such claim accrues or
unless action is begun within six months after the date of
mailing, by certified or registered mail, of notice of final
denial of the claim by the agency to which it was presented.
28 U.S.C. § 2401(b) (2012) (emphasis added).
As of 1976, when the STLA statute of limitations was
last amended, federal courts enforced the FTCA's statute of
limitations as a jurisdictional requirement. See, e.g.,
Humphreys v. United States, 272 F.2d 411, 412 (9th Cir. 1959)
(holding "the District Court has no jurisdiction over [an
untimely FTCA] action" "once the two-year period of limitations
has run.") (citing Edwards v. United States,
163 F.2d 268, 269
(9th Cir. 1947); Simon v. United States,
244 F.2d 703, 705 & n.4
(5th Cir. 1957) (holding the FTCA's filing deadline is a
jurisdictional condition on the Act's waiver of sovereign
immunity) (citing Carpenter v. United States,
56 F.2d 828, 829
(2d Cir. 1932)); Anderegg v. United States,
171 F.2d 127, 128
(4th Cir. 1948), cert. denied,
336 U.S. 967,
69 S. Ct. 937
(Mem.),
93 L. Ed. 1118 (1949) (holding that the FTCA's filing
deadline is a jurisdictional limit that the Government cannot
waive) (first citing Munro v. United States,
303 U.S. 36, 41,
58
S. Ct. 421,
82 L. Ed. 633 (1938); and then citing Finn v. United
States,
123 U.S. 227, 233,
8 S. Ct. 82,
31 L. Ed. 128 (1887)).
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This is further indication that the legislature didn't intend
that the STLA statute of limitations be subject to waiver by, or
equitable tolling by conduct of, the executive branch.
V. CONCLUSION
The State Tort Liability Act statute of limitations,
HRS § 662-4, cannot be waived by, or tolled by conduct of, the
executive branch. If a lawsuit asserting a non-medical tort
claim against the State is filed more than two years after the
claim accrued, state courts have no subject matter jurisdiction
over the claim. There was no dispute that Okutsu's lawsuit was
filed more than two years after his tort claim accrued.
Accordingly, the circuit court did not err by granting the
State's motion to dismiss. We affirm the Final Judgment entered
by the circuit court on May 16, 2018.
On the briefs:
/s/ Katherine G. Leonard
Jack Schweigert, Presiding Judge
Rory Soares Toomey,
for Plaintiff-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Kendall J. Moser,
William K. Awong, /s/ Sonja M.P. McCullen
Deputy Attorneys General, Associate Judge
State of Hawai#i,
for Defendant-Appellee.
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