IN THE SUPREME COURT OF THE STATE OF HAWAI`I





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LINDA C. TSEU, in her official capacity as Executive

Director of the Hawaii Civil Rights Commission, ex relatione JACK HOBBS and MISAYO HOBBS, individually, and JACK HOBBS as guardian ad litem for KENJI HOBBS and TAMIKO HOBBS, minors, Plaintiffs-Appellees, v. ALBERT JEYTE and JESSIE WHEELWRIGHT, Defendants-Appellants



NO. 20489





MOTION FOR RECONSIDERATION





(CIV. NO. 94-1553)





AUGUST 26, 1998





MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, AND RAMIL, JJ.





Upon consideration of plaintiff-counterclaim defendant-appellee Hawai`i Civil Rights Commission's (HCRC) motion for reconsideration and affidavits in support thereof, it appears that the HCRC misapprehends the scope of our opinion. As stated on multiple occasions in the opinion (slip op. at 13-15), the cause of action which may exist against the HCRC is based upon a duty to follow its own administrative regulations. This is not a novel cause of action. See, e.g., Berkovitz v. United States, 486 U.S. 531 (1988) (reversing order dismissing plaintiffs' claims that the National Institute of Health violated statutory and regulatory provisions in approving vaccine for public use). The holding of the opinion does not extend to private litigants, nor does it abolish the common-law torts of malicious prosecution and abuse of process.

The State Tort Liability Act provides that the State shall not be liable for "[a]ny claim based upon an act or omission of an employee of the State, exercising due care, in the execution of a statute or regulation[.]" HRS § 662-15(1) (1993). The clear corollary to this section is that the State does not waive liability for the acts or omissions of state employees not exercising due care in the execution of a statute or regulation.

The remaining arguments raised by the HCRC do not establish a point of law or fact which this court "has overlooked or misapprehended" pursuant to the standard for reconsideration set forth in Hawai`i Rules of Appellate Procedure Rule 40(b). Therefore,

IT IS HEREBY ORDERED that the HCRC's motion to reconsider is denied.



John Ishihara of Department of

Labor and Industrial Relations

Hawai`i Civil Rights Commission

State of Hawai`i