Hoke v. Paul, 8023

• Citation: 653 P.2d 1155,65 Haw. 478
• Decision Date: 16 November 1982
• Docket Number: No. 8023,8023
• Parties: , 35 A.L.R.4th 993 Arthur A. HOKE, Jr. and Helen P. Hoke, Plaintiffs-Appellants, v. Guy A. PAUL, Chief of Police of the County of Hawaii, County of Hawaii, a municipal corporation, and John Does 1 through 10, Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 1155

653 P.2d 1155

65 Haw. 478, 35 A.L.R.4th 993

Arthur A. HOKE, Jr. and Helen P. Hoke, Plaintiffs-Appellants, v. Guy A. PAUL, Chief of Police of the County of Hawaii, County

of Hawaii, a municipal corporation, and John Does

1 through 10, Defendants-Appellees.

No. 8023.

Supreme Court of Hawai'i.

Nov. 16, 1982.

Syllabus by the Court

1. An employer is not liable for defamatory publications by an employee who is not acting within the scope and course of his employment.

2. An action for harassment arising out of subjective, intentional malice on the part of a public official in the use of his official position lies only against him personally and not his employer.

3. Where a public official is defamed with respect to what he has done as a public servant, liability attaches against the person publishing the false defamatory statements only if that person knew the statements were false or acted in reckless disregard of whether they were false or not.

4. The two-year statute of limitations with respect to libel and slander under § 657-4, HRS, begins to run when the person defamed first learns or reasonably should have learned of the publication of the defamatory material.

5. A republication of defamatory material is a separate tort and the statute of limitations with respect to that publication begins to run when the person defamed knows or reasonably should have known of the republication.

6. An injured person complaining of a continuing course of malicious harassment by a nonjudicial government officer would be limited to damages accruing not more than two years immediately prior to the original filing of the complaint with respect to such action. If, however, there is a relation back under Rule 15(c), HRCP, with respect to acts previously alleged, damages arising out of those actions would also be allowed.

7. An injured party has the burden of adducing clear and convincing proof that a nonjudicial government officer was motivated by malice and not by an otherwise proper purpose in taking official action against him.

8. Where it is alleged that a husband has been defamed and/or has been the victim of malicious official harassment, a wife has no independent cause of action, but may recover damages for proved loss of consortium, and for proved mental distress under the standard laid down in Rodrigues v. State, on any count and for the same period with respect to which her husband has recovered damages.

9. Where the first count was in libel and slander and the second count was for malicious official harassment but included the acts which were the bases of the libel and slander charge, there can be no duplication in the recovery of any damages awarded.

Stanley H. Roehrig, Hilo, and Kazuhisa Abe, Honolulu, for plaintiffs-appellants.

Burnham H. Greeley, Carlsmith, Carlsmith, Wichman & Case, Honolulu, for Guy Paul.

Patricia K. O'Toole, Asst. Corp. Counsel, Hilo, for County of Hawaii.

Before RICHARDSON, C.J., and LUM, NAKAMURA, PADGETT and HAYASHI, JJ.

PADGETT, Justice.

This is an appeal from the granting of a summary judgment in favor of Appellees Guy A. Paul (Paul) and the County of Hawaii (County). We affirm as to Appellee County of Hawaii and reverse as to Appellee Paul.

The second amended complaint, with respect to which the summary judgment was granted, contained two counts. Count I was essentially an action in defamation concerning two documents prepared and allegedly published by Paul. Count II encompassed not only the two publications in question, but a series of acts commencing some 18 or 19 years earlier and allegedly continuing until the date of the filing of the second amended complaint. It sounded in what can best be described as malicious official harassment of Appellant Arthur A. Hoke, Jr. (Hoke) by Paul through the use of his position as Assistant Chief and later Chief of Police of the County of Hawaii. Appellant Helen P. Hoke (Helen Hoke), wife of Hoke claimed damages under both counts for loss of consortium. Extensive affidavits and other exhibits were filed on both sides with respect to the motion for summary judgment which, thereafter, was granted by the court below.

I. THE COUNTY OF HAWAII.

Appellants alleged, with respect to Paul's actions which are the claimed bases of liability under both counts, that those actions were taken in the course and scope of his employment.

As to Count I, defamation, the law is that an employer may be liable for compensatory damages for the defamatory acts of an employee if the employee was acting within the scope and course of his employment. Kahanamoku v. Advertiser, 26 Haw. 500 (1922); 50 AM.JUR.2d, LIBEL AND SLANDER § 163 (1970). However, the affidavits filed by appellants in opposition to the motion for summary judgment make clear that their contention is that Paul, in doing the specific acts complained of, was acting contrary to procedures laid down in the general orders of the police department of the County of Hawaii and the collective bargaining contract between the County and the representative of the police officers, SHOPO. Appellants have therefore, insofar as the County of Hawaii goes, conceded that Paul was not acting within the scope and course of his duties as an employee of the County in publishing the two allegedly defamatory statements. Hence, summary judgment was properly granted on Count I in favor of the County.

As to Count II, it is an action for harassment of another by a public official in the use of his official position arising out of subjective, intentional malice. Such an action clearly lies only against him personally and not his employer; compare, Medeiros v. Kondo, 55 Haw. 499, 522 P.2d 1269 (1974); Runnels v. Okamoto, 56 Haw. 1, 525 P.2d 1125 (1974). Count II fails, therefore, fails to state a claim for relief against the County.

II. THE LIABILITY OF APPELLEE PAUL UNDER COUNT I.

A. The Standard of Malice.

The two documents complained of are (1) a memorandum from Appellee Paul to the then Chief of Police of the County of Hawaii, Ernest J. Fergerstrom, dated July 22, 1975 authored by Appellee Paul and (2) a misconduct report prepared by Appellee Paul and signed by him as the investigator, receipt of a copy of which was acknowledged by Appellant Arthur A. Hoke, Jr., in December of 1975.

Appellee contends that the "malice" standard adopted in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) and followed by us in Tagawa v. Maui Publishing Co., Ltd., 50 Haw. 648, 448 P.2d 337 (1968) and Rodriguez v. Nishiki, Haw. 653 P.2d 1145 (decided 1982) is applicable. Under that standard, where the defamee is a public official or figure, the defamor is not liable, even though the publication be false, unless he knew that it was false or unless he published it with reckless disregard of whether or not it was false.

On the other hand, appellants contend that the standard should be that adopted recently by us in Towse v. State, 64 Haw. 624, 647 P.2d 696 (1982), to wit, that where a defamor is a public official, he is held to the standard of a reasonable man in determining whether his publication is or is not false but where the defamee is also employed by the government, he or she must prove that the defamor acted with intentional, subjective malice by clear and convincing evidence, under the rule set forth in Medeiros, supra.

We think that insofar as any claim sounding in defamation goes, it may be that the appellants in Towse, supra, although public employees, were not public "officials" (or public figures) (see New York Times Co. v. Sullivan, supra at 376 U.S. 283, n. 23, 84 S.Ct. at 727, n. 23). In our case, on the other hand, Appellant Hoke was a Captain of Police, a highly visible "public official", and therefore, the New York Times' standard should apply.

That standard, however, does not save summary judgment on Count I in this case, since the evidence submitted by the appellants in opposition to the motion for summary judgment is sufficient to create a genuine issue of material fact as to whether or not Paul acted with knowledge of the alleged falsity of his statements or in reckless disregard thereof. For example, there is sufficient evidence of such clarity and convincing force that a reasonable trier of the fact, who believed it, could conclude that many of the charges of misconduct as a police officer and captain, leveled in the documents in question against Hoke by Paul concerned conduct of Hoke which was authorized by his superior and known to be so authorized by Paul, who, nevertheless, leveled the charges in disregard of that authorization.

B. The Statute of Limitations.

Defamation actions are governed by § 657-4, HRS, which provides,

All actions for libel or slander shall be commenced within two years after the cause of action accrued, and not after.

The original complaint in this case was not filed until January 23, 1978, thus, it was filed more than two years after the date of Exhibit A (attached to the complaint) and more than two years after Appellant Hoke had received Exhibit B (attached to the complaint).

With respect to Exhibit A (the memorandum of July 22, 1975) appellants argue that they did not know of the existence of that document until May of 1976 when it was discovered in the course of the grievance procedure which eventually cleared Hoke of all of the charges leveled against him in the two documents by Paul. ¹ As to Exhibit B, Hoke claims he did not know of its publication to the so-called second disciplinary board until he was called before that board on January 23, 1976. ²

Appellee argues that the statute of limitations with respect to defamation actions begins to run when the publication occurs, regardless of when it is discovered. See, 50 Am.Jur.2d, Libel and Slander § 390 at 912 (1970) and the cases cited in footnote 16 thereto.

Appellants, on the other hand, contend that under Yoshizaki v. Hilo Hospital, 50 Haw. 150, 433 P.2d 220 (1967), ...