Towse v. State

• Decision Date: 18 June 1982
• Docket Number: No. 6487,6487
• Citation: 64 Haw. 624,647 P.2d 696
• Court: Hawaii Supreme Court
• Parties: Edward A. TOWSE; Bettye Irene Towse; Brutus C. Hamm; Florence K. Hamm; Sadato Yoshimura; Robert Kashinoki; Edith Mew-Heone Kashinoki; Harold E. Yamashita; Halene M. Yamashita; Oscar Johnson; Anthony Redling; Nellannette A. Redling; Daryl D. Aiwohi; Roy Heu; Teddy Bodziak; Joseph D. Moniz; Dorothy E. Moniz; Joseph Koszewnik; Myoung Ja Koszewnik; Raplee K. Cummins; Laverne D. Cummins; Loreto Raquel; Perlita V. Raquel; Casimir C. Preda, Plaintiffs-Appellants, v. STATE of Hawaii; Nelson K. Doi, individually and in his capacity as Lieutenant Governor and as Head of the Governor's Task Force on the Hawaii State Prison; Andrew Chang, individually and in his capacity as Director of the Department of Social Services & Housing and as member of the Governor's Task Force on the Hawaii State Prison; Ronald Amemiya, individually and in his capacity as Attorney General for the State of Hawaii and as member of the Governor's Task Force on the Hawaii State Prison; Antone Olim, individually and in his capacity as Superintendent of Hawaii State Prison; John Smythe, individually and in his capacity as Superintendent of Hawaii State Prison; John Smythe, individually and in his capacity as Correctional Care Administrator; Elwood Reynolds, individually and in his capacity as Administrative Captain and Training Officer; Valentine A. Sieferman, individually and as the Adjutant General of the Hawaii Air National Guard; John Does 1 through 10, Defendants-Appellees.

Page 696

647 P.2d 696

64 Haw. 624

Edward A. TOWSE; Bettye Irene Towse; Brutus C. Hamm Florence K. Hamm; Sadato Yoshimura; Robert Kashinoki; Edith Mew-Heone Kashinoki; Harold E. Yamashita; Halene M Yamashita; Oscar Johnson; Anthony Redling; Nellannette A Redling; Daryl D. Aiwohi; Roy Heu; Teddy Bodziak; Joseph D Moniz; Dorothy E. Moniz; Joseph Koszewnik; Myoung Ja Koszewnik; Raplee K. Cummins; Laverne D. Cummins; Loreto Raquel; Perlita V. Raquel; Casimir C. Preda, Plaintiffs-Appellants, v. STATE of Hawaii; Nelson K. Doi, individually and in his capacity as Lieutenant Governor and as Head of the Governor's Task Force on the Hawaii State Prison; Andrew Chang, individually and in his capacity as Director of the Department of Social Services & Housing and as member of the Governor's Task Force on the Hawaii State Prison; Ronald Amemiya, individually and in his capacity as Attorney General for the State of Hawaii and as member of the Governor's Task Force on the Hawaii State Prison; Antone Olim, individually and in his capacity as Superintendent of Hawaii State Prison; John Smythe, individually and in his capacity as Superintendent of Hawaii State Prison; John Smythe, individually and in his capacity as Correctional Care Administrator; Elwood Reynolds, individually and in his capacity as Administrative Captain and Training Officer; Valentine A. Sieferman, individually and as the Adjutant General of the Hawaii Air National Guard; John Does 1 through 10, Defendants-Appellees.

No. 6487.

Supreme Court of Hawai'i.

June 18, 1982.

Syllabus by the Court

1. Consideration by the trial court of matters outside the pleadings may render a motion to dismiss as one for summary judgment. HRCP Rule 12(b).

2. A non-judicial governmental officer does not enjoy an absolute immunity for his tortious acts. Rather, where such officer in exercising his authority is motivated by malice, and not by an otherwise proper purpose, he should not escape liability for the injury he causes.

3. The injured party has the burden of adducing by clear and convincing proof that the non-judicial governmental officer was motivated by malice and not by an otherwise proper purpose.

4. While the existence or absence of malice is generally a question for the jury, when this issue has been removed from the case by uncontroverted affidavits and depositions, and the moving party is entitled to judgment as a matter of law, summary judgment is proper.

5. Among the elements necessary to the maintenance of an action for false imprisonment, is that the act of confinement must have been effected without lawful privilege.

6. Under certain circumstances, for the orderly execution of a search, made pursuant to warrant, a reasonable confinement may be necessary and proper.

7. Loss of consortium is generally a derivative action. Hence, where the initial claim of injury cannot be maintained, the derivative action of loss of consortium must also fail.

Richard Turbin, Honolulu, for plaintiffs-appellants.

Dudley Akama, Deputy Atty. Gen., Honolulu (Everett Cuskaden, Deputy Atty. Gen., Honolulu, on brief), for defendants-appellees.

Before RICHARDSON, C. J., LUM and NAKAMURA, JJ., and OGATA and MENOR, Retired Justices, Assigned Temporarily.

OGATA, Retired Justice.

This is an appeal brought by Plaintiffs-Appellants, fifteen prison guards (hereinafter "appellant-guards") and certain of their wives (hereinafter "appellant-wives"), from an order of the Circuit Court of the First Circuit dismissing their action for defamation, false imprisonment and loss of consortium against Defendants-Appellees. ¹ For the reasons set out below, we affirm.

I.

This suit arises out of a series of incidents occurring in February of 1975, during the purported "overhaul" ² of the Hawaii State Prison. On the morning of February 10, 1975, pursuant to Executive Order No. 75-1, the Hawaii National Guard, with assistance from the Honolulu Police Department, and under the direction of the Governor's task force, took control of the prison. The take-over, part of the planned overhaul, was to effectuate a warranted search of the prison for contraband. ³

Appellant-guards arrived for work on that morning as usual, along with approximately 70 other guards. Thirty-six of the guards, among them appellant-guards, were informed by a roll call that they were to be transferred from prison duty, also as part of the overhaul, and to report "up front". These guards were then either escorted or requested to go to a conference room to await a processing out of the facility. ⁴ They remained there approximately two to four hours while their lockers were searched.

The take-over generated almost instant news coverage. Consequently, later that day, appellee Doi, as chairman of the task force participated in a press conference to discuss the take-over and the prison overhaul. Appellant-guards allege that at this press conference appellee Doi uttered defamatory statements concerning them which were then widely disseminated throughout the state. ⁵

Approximately a week later, on February 18, 1975, the task force publicly issued its findings in a preliminary report concerning the overhaul. Appellant-guards contend that this report also contained defamatory matter concerning them. ⁶ On March 10, 1976, appellants filed a complaint, subsequently amended on June 23, 1976, in the circuit court alleging five causes of action. First, appellant-guards allege that the statements by appellee Doi at the February 10, 1975 press conference had been defamatory. Second, appellant-guards allege that certain statements contained in the preliminary report issued by the task force were defamatory. Third, appellant-guards allege that their confinement in the prison conference room, effected by appellees Olim, Smythe, Reynolds, and Sieferman, constituted false imprisonment. The fourth and fifth causes of action, brought by appellant-wives, allege loss of consortium from the claimed defamation suffered by their husbands, appellant-guards, by appellees Doi and the individual members of the task force.

On October 1, 1976, appellees filed a motion to dismiss pursuant to Rules 12 and 56 of the Hawaii Rules of Civil Procedure (hereinafter "HRCP"). After consideration of the memoranda and affidavits in support and in opposition filed by the respective parties, the trial court, on December 10, 1976, granted the motion to dismiss as to all defendants on all counts.

On January 18, 1977, appellants noticed this appeal.

II.

In the lower court, as we noted, appellees filed their motion to dismiss citing as its basis HRCP Rules 12 and 56. Although the language of the subsequent order is somewhat ambiguous, the court appears to have treated the motion as a motion to dismiss under HRCP Rule 12(b). However, in the arguments before this Court, by way of the briefs submitted and the oral arguments presented, there is considerable confusion as to the applicable standard of review. We therefore feel it necessary, as a threshold matter, to determine whether, for the purposes of our review, the order of the lower court was one granting summary judgment under HRCP Rule 56 or one granting a motion to dismiss for failure to state a claim under HRCP Rule 12(b)(6).

We have found, "(i)n certain circumstances, a motion to dismiss may be treated as one for summary judgment." Au v. Au, 63 Haw. 210, 212, 626 P.2d 173, 176, aff'd on recon., 63 Haw. 263, 626 P.2d 181 (1981).

Rule 12(b) states, inter alia :

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 motion by Rule 56.

Thus, in Gonsalves v. First Insurance Co., 55 Haw. 155, 516 P.2d 720 (1973), we held that where the trial court considered a memorandum of law and a supporting affidavit in determining the merits of the motion, the order granting the motion was one for summary judgment and not on a motion to dismiss. We so found despite the fact the order had been entitled "Order Granting Motion to Dismiss", stating, "(t)his court is not foreclosed from recognizing the true nature of an order by the label put upon it by the circuit court." Id. at 160, 516 P.2d at 723.

Here, the order granting appellees' motion is entitled "Order Granting Dismissal of All Defendants on All Counts." However, as we noted, this is not dispositive of the nature of the motion. Rather, we observe that numerous memoranda and affidavits, both in opposition and support of the motion, have been filed by the parties. Moreover, it is clear from a reading of the order that the lower court considered these submissions in making its determination. ⁷ Hence, we conclude that the instant order was one granting summary judgment and not a motion to dismiss.

Consequently, upon this appeal, we next determine, as to the causes of action averred by appellants, whether any genuine issue as to a material fact had been raised and whether appellees had been entitled to summary judgment as a matter of law. HRCP Rule 56; Namauu v. City & County, 62 Haw. 358, 614 P.2d 943 (1980).

III.

We first address appellant-guards' defamation claims against appellee Doi and the individual members of the task force, appellees Doi, Chang and Amemiya.

Our courts have held that a non-judicial governmental officer does not enjoy an absolute immunity for his tortious acts. Seibel v. Kemble, 63 Haw. 516, 631 P.2d 173 (1981); Orso v. City & County, 56 Haw. 241, 534 P.2d 489 (1975); Runnels v. Okamoto, 56 Haw. 1, 525 P.2d 1125 (1974); Medeiros v. Kondo, 55 Haw. 499, 522 P.2d 1269 (1974); Lane v. Yamamoto, 2 Haw.App. 176, 628 P.2d 634 (1981); Kajiya v. Department of Water Supply, 2 Haw.App. 221, 629 P.2d...