FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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-17-0000731

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 DefendantAppellee 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

Electronically Filed

Intermediate Court of Appeals

CAAP-17-0000731

12-APR-2023

08:04 AM

Dkt. 91 OP
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...)

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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[.]

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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.

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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.

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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 non8
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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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