sovereign immunity in Hawaii

2025In Superferry II, we explained that awards of attorneys’ fees against the State are subject to the sovereign immunity doctrine: “‘an award of costs and fees to a prevailing 22 *** FOR PUBLICATION IN WEST’S HAWAI᷾I REPORTS AND PACIFIC REPORTER *** party is inherently in the nature of a damage award.’ Accordingly, to properly award attorney’s fees and costs against [the State] in this case, there must be ‘a clear relinquishment’ of the State’s immunity.” 120 Hawaiʻi at 226, 202 P.3d at 1271 (first quoting Fought & Co. v. Steel Eng’g & Erection, Inc., 87 Hawaiʻi 37, 51, 951 P.2d 487, 501 (1998);

2025In Superferry II, we explained that awards of attorneys’ fees against the State are subject to the sovereign immunity doctrine: “‘an award of costs and fees to a prevailing 22 *** FOR PUBLICATION IN WEST’S HAWAI᷾I REPORTS AND PACIFIC REPORTER *** party is inherently in the nature of a damage award.’ Accordingly, to properly award attorney’s fees and costs against [the State] in this case, there must be ‘a clear relinquishment’ of the State’s immunity.” 120 Hawaiʻi at 226, 202 P.3d at 1271 (first quoting Fought & Co. v. Steel Eng’g & Erection, Inc., 87 Hawaiʻi 37, 51, 951 P.2d 487, 501 (1998);

2025In Superferry II, we explained that awards of attorneys’ fees against the State are subject to the sovereign immunity doctrine: “‘an award of costs and fees to a prevailing 22 *** FOR PUBLICATION IN WEST’S HAWAI᷾I REPORTS AND PACIFIC REPORTER *** party is inherently in the nature of a damage award.’ Accordingly, to properly award attorney’s fees and costs against [the State] in this case, there must be ‘a clear relinquishment’ of the State’s immunity.” 120 Hawaiʻi at 226, 202 P.3d at 1271 (first quoting Fought & Co. v. Steel Eng’g & Erection, Inc., 87 Hawaiʻi 37, 51, 951 P.2d 487, 501 (1998);

2025In Superferry II, we explained that awards of attorneys’ fees against the State are subject to the sovereign immunity doctrine: “‘an award of costs and fees to a prevailing 22 *** FOR PUBLICATION IN WEST’S HAWAI᷾I REPORTS AND PACIFIC REPORTER *** party is inherently in the nature of a damage award.’ Accordingly, to properly award attorney’s fees and costs against [the State] in this case, there must be ‘a clear relinquishment’ of the State’s immunity.” 120 Hawaiʻi at 226, 202 P.3d at 1271 (first quoting Fought & Co. v. Steel Eng’g & Erection, Inc., 87 Hawaiʻi 37, 51, 951 P.2d 487, 501 (1998);

2013See Pele Defense Fund, 73 Haw. at 609-10 , 837 P.2d at 1266 (“If the relief sought against a state official is prospective in nature, then the relief may be allowed regardless of the state’s sovereign immunity.”) (emphasis added).

2013See Pele Defense Fund, 73 Haw. at 609-10 , 837 P.2d at 1266 (“If the relief sought against a state official is prospective in nature, then the relief may be allowed regardless of the state’s sovereign immunity.”) (emphasis added).

2024Dep't of Transp., 120 Hawai#i 181, 229 n.30, 202 P.3d 1226 , 1274 n.30 (2009)); see also Gold Coast Neighborhood Ass'n v. State, 140 Hawai#i 437, 466-67, 403 P.3d 214, 243-44 (2017) (denying claim for attorneys fees against State under private attorney general doctrine where plaintiff sought declaratory relief over State's responsibility to maintain seawall); Kaleikini v. Yoshioka, 129 Hawai#i 454, 468, 304 P.3d 252, 266 (2013) (disallowing claim for attorneys fees against State under private attorney general doctrine because statutory provision allowing declaratory or injunctive relief is not

2017When determining whether the State has waived its sovereign immunity, Hawaii has adopted the following guidance from federal law: (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 ap *397 pear 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

2025In Superferry II, we explained that awards of attorneys’ fees against the State are subject to the sovereign immunity doctrine: “‘an award of costs and fees to a prevailing 22 *** FOR PUBLICATION IN WEST’S HAWAI᷾I REPORTS AND PACIFIC REPORTER *** party is inherently in the nature of a damage award.’ Accordingly, to properly award attorney’s fees and costs against [the State] in this case, there must be ‘a clear relinquishment’ of the State’s immunity.” 120 Hawaiʻi at 226, 202 P.3d at 1271 (first quoting Fought & Co. v. Steel Eng’g & Erection, Inc., 87 Hawaiʻi 37, 51, 951 P.2d 487, 501 (1998);

2025In Superferry II, we explained that awards of attorneys’ fees against the State are subject to the sovereign immunity doctrine: “‘an award of costs and fees to a prevailing 22 *** FOR PUBLICATION IN WEST’S HAWAI᷾I REPORTS AND PACIFIC REPORTER *** party is inherently in the nature of a damage award.’ Accordingly, to properly award attorney’s fees and costs against [the State] in this case, there must be ‘a clear relinquishment’ of the State’s immunity.” 120 Hawaiʻi at 226, 202 P.3d at 1271 (first quoting Fought & Co. v. Steel Eng’g & Erection, Inc., 87 Hawaiʻi 37, 51, 951 P.2d 487, 501 (1998);

2014Chock, Ltd. v. Kaneshiro, 51 Haw. 87, 88 , 451 P.2d 809, 811 (1969). 36.“If it be made to appear at any stage of the case that the State claims title, the court’s jurisdiction over the merits of such claims thereby is ousted under the doctrine of sovereign immunity.” Marks v. Ah Nee, 48 Haw. 92, 94 , 395 P.2d 620, 622 (1964).

2014Chock, Ltd. v. Kaneshiro, 51 Haw. 87, 88 , 451 P.2d 809, 811 (1969). 36.“If it be made to appear at any stage of the case that the State claims title, the court’s jurisdiction over the merits of such claims thereby is ousted under the doctrine of sovereign immunity.” Marks v. Ah Nee, 48 Haw. 92, 94 , 395 P.2d 620, 622 (1964).

1985This court has held that “the doctrine of sovereign immunity precludes any suit against the State without the State’s express consent.” Big Island Small Ranchers Association v. State, 60 Haw. 228, 236 , 588 P.2d 430, 436 (1978) (citing Helela v. State, 49 Haw. 365, 369 , 418 P.2d 482, 485 (1966)).

1985This court has held that “the doctrine of sovereign immunity precludes any suit against the State without the State’s express consent.” Big Island Small Ranchers Association v. State, 60 Haw. 228, 236 , 588 P.2d 430, 436 (1978) (citing Helela v. State, 49 Haw. 365, 369 , 418 P.2d 482, 485 (1966)).

2024Dep't of Transp., 120 Hawai#i 181, 229 n.30, 202 P.3d 1226 , 1274 n.30 (2009)); see also Gold Coast Neighborhood Ass'n v. State, 140 Hawai#i 437, 466-67, 403 P.3d 214, 243-44 (2017) (denying claim for attorneys fees against State under private attorney general doctrine where plaintiff sought declaratory relief over State's responsibility to maintain seawall); Kaleikini v. Yoshioka, 129 Hawai#i 454, 468, 304 P.3d 252, 266 (2013) (disallowing claim for attorneys fees against State under private attorney general doctrine because statutory provision allowing declaratory or injunctive relief is not

2024“The State’s sovereign immunity does not bar actions seeking prospective declaratory or injunctive relief.” Gold Coast Neighborhood Ass’n v. State, 140 Hawaiʻi 437, 464, 403 P.3d 214, 241 (2017).

2024Sovereign immunity “It is well established that the State as sovereign is immune from suit except as it consents to be sued.” Nelson, 130 Hawai‘i at 168, 307 P.3d at 148 (quoting Figueroa v. State, 61 Haw. 369, 381 , 604 P.2d 1198, 1205 (1979)).

2017See id. (observing that sovereign immunity did not bar plaintiffs’ underlying claims for declaratory and injunctive relief); see also Sierra Club, 120 Hawai'i at 226 , 202 P.3d at 1271 (recognizing that sovereign immunity does not bar actions seeking prospective relief).

2017In support of this contention, Gold Coast and the ICA place sole reliance on this court’s statement in Anzai, 99 Hawai'i at 515-16 , 57 P.3d at 440-41 , that because the case “deal[t] with a suit initiated by the State, the doctrine of sovereign immunity [was] unavailing and inappo-site.” Anzai centered on a dispute between the State of Hawai'i and the City and County of Honolulu (the County), in which the State claimed that it was exempt from real property taxes levied by the County as a result of recently enacted state legislation; the County, in turn, discounted the legislation and required

2017In support of this contention, Gold Coast and the ICA place sole reliance on this court’s statement in Anzai, 99 Hawai'i at 515-16 , 57 P.3d at 440-41 , that because the case “deal[t] with a suit initiated by the State, the doctrine of sovereign immunity [was] unavailing and inappo-site.” Anzai centered on a dispute between the State of Hawai'i and the City and County of Honolulu (the County), in which the State claimed that it was exempt from real property taxes levied by the County as a result of recently enacted state legislation; the County, in turn, discounted the legislation and required

1992Cos., 68 Haw. 192, 198 , 708 P.2d 129, 134 (1985), cert. denied, 476 U.S. 1169 (1986) (Acknowledging its earlier ruling in *608 Greenwell, the court held that sovereign immunity was a bar to plaintiff’s action because it “does not involve an action seeking only to enjoin state officials from acting unconstitutionally.” (Citations omitted)); Big Island Small Ranchers Ass’n v. State, 60 Haw. 228, 236 , 588 P.2d 430, 436 (1978) (Plaintiffs’ chapter 480 damages claims were held to be barred by sovereign immunity, because “the legislature has not made Chapter 480 explicitly applicable to the State,

1992Cos., 68 Haw. 192, 198 , 708 P.2d 129, 134 (1985), cert. denied, 476 U.S. 1169 (1986) (Acknowledging its earlier ruling in *608 Greenwell, the court held that sovereign immunity was a bar to plaintiff’s action because it “does not involve an action seeking only to enjoin state officials from acting unconstitutionally.” (Citations omitted)); Big Island Small Ranchers Ass’n v. State, 60 Haw. 228, 236 , 588 P.2d 430, 436 (1978) (Plaintiffs’ chapter 480 damages claims were held to be barred by sovereign immunity, because “the legislature has not made Chapter 480 explicitly applicable to the State,

2025In Superferry II, we explained that awards of attorneys’ fees against the State are subject to the sovereign immunity doctrine: “‘an award of costs and fees to a prevailing 22 *** FOR PUBLICATION IN WEST’S HAWAI᷾I REPORTS AND PACIFIC REPORTER *** party is inherently in the nature of a damage award.’ Accordingly, to properly award attorney’s fees and costs against [the State] in this case, there must be ‘a clear relinquishment’ of the State’s immunity.” 120 Hawaiʻi at 226, 202 P.3d at 1271 (first quoting Fought & Co. v. Steel Eng’g & Erection, Inc., 87 Hawaiʻi 37, 51, 951 P.2d 487, 501 (1998);

2025In Superferry II, we explained that awards of attorneys’ fees against the State are subject to the sovereign immunity doctrine: “‘an award of costs and fees to a prevailing 22 *** FOR PUBLICATION IN WEST’S HAWAI᷾I REPORTS AND PACIFIC REPORTER *** party is inherently in the nature of a damage award.’ Accordingly, to properly award attorney’s fees and costs against [the State] in this case, there must be ‘a clear relinquishment’ of the State’s immunity.” 120 Hawaiʻi at 226, 202 P.3d at 1271 (first quoting Fought & Co. v. Steel Eng’g & Erection, Inc., 87 Hawaiʻi 37, 51, 951 P.2d 487, 501 (1998);

2013In Kaho‘ohanohano, 114 Hawai'i at 338 , 162 P.3d at 732 , this court considered claims based on the Ha-wai'i Constitution to be “not cognizable under HRS § 661” as “not ‘founded upon any statute of the State....’” Thus, one must look to the true basis of Plaintiffs’ claim, Article XII, Section 1, for a clear waiver of the State’s sovereign immunity, and there is none.

2013A. Where the State’s sovereign immunity does not bar the underlying action because it presents a constitutional claim, see Kaho'ohanohano, 114 Hawai'i at 337 , 162 P.3d at 731 (“[SJovereign immunity will not be a bar where governmental action is challenged as unconstitutional.”) (citation omitted), there is no requirement of a separate waiver of sovereign immunity over attorneys’ fees.

2007Fund v. Paty, 73 Haw. 578 , 837 P.2d 1247 (1992); Waugh v. University of Hawaii 63 Haw. 117 , 621 P.2d 957 , (1980)); (b) Trustees have not sued any State official comprising an executive department of the government; and (c) the sovereign immunity bar encompasses equitable claims including Trustees’ claims for declaratory and injunc-tive relief.

2007Fund v. Paty, 73 Haw. 578 , 837 P.2d 1247 (1992); Waugh v. University of Hawaii 63 Haw. 117 , 621 P.2d 957 , (1980)); (b) Trustees have not sued any State official comprising an executive department of the government; and (c) the sovereign immunity bar encompasses equitable claims including Trustees’ claims for declaratory and injunc-tive relief.

2014“If it be made to appear at any stage of the case that the State claims title, the court’s jurisdiction over the merits of such claims thereby is ousted under the doctrine of sovereign immunity.” Marks v. Ah Nee, 48 Haw. 92, 94 , 14 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER*** 395 P.2d 620, 622 (1964).

2014“If it be made to appear at any stage of the case that the State claims title, the court’s jurisdiction over the merits of such claims thereby is ousted under the doctrine of sovereign immunity.” Marks v. Ah Nee, 48 Haw. 92, 94 , 14 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER*** 395 P.2d 620, 622 (1964).

2013It is true that Chapter 673 contains a clear general waiver of the State’s sovereign immunity, see Office of Hawaiian Affairs v. State, 110 Hawai'i 338, 358 , 133 P.3d 767, 787 (2006)(“A plain reading of HRS § 673-1 indicates that it unequivocally waives the State’s sovereign immunity” over breach of trust claims), HRS § 673-l(a) (“The State waives its immunity for any breach of trust or fiduciary duty resulting from the acts or omissions of its agents, officers and employees in the management and disposition of trust funds and resources of ... [t]he Hawaiian home lands trust....”).

2013It is true that Chapter 673 contains a clear general waiver of the State’s sovereign immunity, see Office of Hawaiian Affairs v. State, 110 Hawai'i 338, 358 , 133 P.3d 767, 787 (2006)(“A plain reading of HRS § 673-1 indicates that it unequivocally waives the State’s sovereign immunity” over breach of trust claims), HRS § 673-l(a) (“The State waives its immunity for any breach of trust or fiduciary duty resulting from the acts or omissions of its agents, officers and employees in the management and disposition of trust funds and resources of ... [t]he Hawaiian home lands trust....”).

2008However, inasmuch as “[t]he applicability of the doctrine of sovereign immunity has been considered an element of subject matter jurisdiction,” Ahuna, 64 Haw. at 333 n. 9, 640 P.2d at 1165 n. 9 (citations omitted), and “[j]uris-diction is the base requirement for any court resolving a dispute[,]” County of Kaua'i v. Baptiste, 115 Hawai'i 15, 25 , 165 P.3d 916, 926 (2007) (internal quotation marks and citation omitted), we are obliged to first ensure that this court has jurisdiction.

2008However, inasmuch as “[t]he applicability of the doctrine of sovereign immunity has been considered an element of subject matter jurisdiction,” Ahuna, 64 Haw. at 333 n. 9, 640 P.2d at 1165 n. 9 (citations omitted), and “[j]uris-diction is the base requirement for any court resolving a dispute[,]” County of Kaua'i v. Baptiste, 115 Hawai'i 15, 25 , 165 P.3d 916, 926 (2007) (internal quotation marks and citation omitted), we are obliged to first ensure that this court has jurisdiction.

2017When determining whether the State has waived its sovereign immunity, Hawaii has adopted the following guidance from federal law: (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 ap *397 pear 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

2017When determining whether the State has waived its sovereign immunity, Hawaii has adopted the following guidance from federal law: (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 ap *397 pear 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

2024Sovereign immunity “It is well established that the State as sovereign is immune from suit except as it consents to be sued.” Nelson, 130 Hawai‘i at 168, 307 P.3d at 148 (quoting Figueroa v. State, 61 Haw. 369, 381 , 604 P.2d 1198, 1205 (1979)).

1999See Figueroa v. State, 61 Haw. 369 , 604 P.2d 1198 (1979); Makanui v. Department of Education, 6 Haw.App. 397 , 721 P.2d 165 (1986). 5 .

2024HRS § 661–1(1) waives the State's sovereign immunity with respect to claims against the State "founded upon any statute."7 The limited waiver in HRS § 661-1(1) "does not itself 7 HRS § 661-1 provides, in relevant part: (continued...) 13 NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER create a substantive right enforceable against the State of Hawai i for money damages." Garner v. State, Dep't of Educ., 122 Hawai i 150, 160, 223 P.3d 215, 225 (App. 2009).

2017Id. at 156 , 223 P.3d at 221 .

2009See Chun, 106 Hawai'i at 432 , 106 P.3d at 355 ("[A] waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign[.]" (Internal quotation marks and citations omitted.)); see also Lehman v. Nakshian, 453 U.S. 156, 161 , 101 S.Ct. 2698 , 69 L.Ed.2d 548 (1981) ("[L]imitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied." (Internal quotation marks and citation omitted.)).

2009See Chun, 106 Hawai'i at 432 , 106 P.3d at 355 ("[A] waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign[.]" (Internal quotation marks and citations omitted.)); see also Lehman v. Nakshian, 453 U.S. 156, 161 , 101 S.Ct. 2698 , 69 L.Ed.2d 548 (1981) ("[L]imitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied." (Internal quotation marks and citation omitted.)).

2006In Pele Defense, which was decided a decade after Mitchell , this court adopted the rule in Ex Parte Young, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908), that distinguished between allowable “prospective” relief and disallowable “retrospective” relief, stating that: If the relief sought against a state official is prospective in nature, then the relief may be allowed regardless of the state’s sovereign immunity.

2006In Pele Defense, which was decided a decade after Mitchell , this court adopted the rule in Ex Parte Young, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908), that distinguished between allowable “prospective” relief and disallowable “retrospective” relief, stating that: If the relief sought against a state official is prospective in nature, then the relief may be allowed regardless of the state’s sovereign immunity.

1992Cos., 68 Haw. 192, 198 , 708 P.2d 129, 134 (1985), cert. denied, 476 U.S. 1169 (1986) (Acknowledging its earlier ruling in *608 Greenwell, the court held that sovereign immunity was a bar to plaintiff’s action because it “does not involve an action seeking only to enjoin state officials from acting unconstitutionally.” (Citations omitted)); Big Island Small Ranchers Ass’n v. State, 60 Haw. 228, 236 , 588 P.2d 430, 436 (1978) (Plaintiffs’ chapter 480 damages claims were held to be barred by sovereign immunity, because “the legislature has not made Chapter 480 explicitly applicable to the State,

1992App. 397, 405-07 , 721 P.2d 165, 171-72 (1986) (The ICA held that Hawaii had not waived its sovereign immunity from § 1983 damages liability, and those claims against the state and state officials in their official capacities were therefore barred. 20 See also HRS chs. 661, 662, 673 and 674 (waiving the State’s sovereign immunity in certain cases).