HILO — The Hawaii Supreme Court has agreed to hear a 2012 defamation lawsuit by Elections Administrator Pat Nakamoto against former County Clerk Jamae Kawauchi and former Council Chairman Dominic Yagong.
The court, in a tersely worded order filed Wednesday morning, said it will be scheduling oral arguments in the case.
Nakamoto appealed her case to the Supreme Court after losing at the circuit court and appellate court levels. The appeal brings the county back into the case as a defendant after it successfully argued for its removal at lower court levels.
Also named as a petitioner, in addition to Nakamoto, is former elections worker Shyla Ayau. Also named as a defendant is Corporate Specialized Intelligence and Investigations LLC, the private investigator that looked into allegations that alcohol was being consumed and private business was conducted on county property against county code.
Nakamoto and Ayau sued after statements by Yagong and Kawauchi were quoted in a Jan. 12, 2012, article in Big Island newspapers naming four employees who had been fired for unspecified violations of county policy. In the article, written by former Tribune-Herald reporter Jason Armstrong, Kawauchi identifies the four who were fired.
The deeper issue at stake is whether worker compensation law is the only recourse for employees who believe they are defamed or their reputations injured by action at the workplace, said Nakamoto’s attorney Ted Hong.
The state’s worker compensation law specifically excludes damage to reputation as a personal injury, but Hong believes that wasn’t the Legislature’s intent in enacting the law. Hong cites cases in other jurisdictions favoring the premise that worker compensation laws should indeed cover defamation, false light and injury to reputation.
“We’re just very grateful that the Supreme Court agreed to take a look at this,” Hong said.
The Intermediate Court of Appeals and the 3rd Circuit Court, however, both ruled there was no defamation and false light claims because statements made to the media were in fact true. Hong is disputing that part of the rulings as well, asking that a jury be empanelled to hear the facts of the case.
“This case involved public officials who abused their authority and leaked details of a confidential, internal investigation and termination to the media in order to smear the petitioners’ reputations,” Hong said in his court filing.
Deputy Corporation Counsel Laureen Martin, representing the county and Kawauchi and Yagong in their official capacities, asked in a response to Hong’s petition that the appellate court’s order be allowed to stand. Martin, in a court filing, contends Hong’s reliance on case law either outside Hawaii or not pertaining to workers comp, while ignoring the primary workers comp case law in the state, is “shocking,” and an “extreme position.”
In addition, she said, it’s too late to call a jury to decide whether the statements alleged were actually factual as two courts have already found they were.
“When this case was at Circuit Court, plaintiffs never pointed to any evidence that the statements were false,” she said in her court filing. “Plaintiffs are prohibited from complaining for the first time on appeal of an error to which they have acquiesced or failed to object.”
Hong had sought more than $500,000 per client in damages.
Yagong and Kawauchi were investigating reports that county employees were hosting parties with alcohol at the county’s Elections Division warehouse. The county code forbids alcohol use on county property. The two were also looking into reports that the warehouse manager, Glen Shikuma, was running a private sign-making business in the county’s leased warehouse building, which would also have been against the county code.
Investigators turned up evidence of empty, full and partially consumed alcohol containers, as well as sign-making equipment Shikuma said he was storing at the warehouse, but claimed he never used on county property. After union grievance hearings, Nakamoto received a 10-day suspension and was reinstated. Shikuma died of an aneurysm before completing the union arbitration process.