*1 KEALOHA, W. Plaintiffs- and MOSES E. MEHAU LARRY PACIFIC GANNETT Cross-Appellees, Appellants, CORPORATION, dba Hono- A Delaware corporation, KAMALII; Bulletin; LEE KINAU BOYD lulu Star INC., dba ENTERPRISES, a Delaware corporation, HERALD, LTD., KGMB-TV; HAWAII TRIBUNE Herald; Tribune WEST- dba Hawaii corporation, Nevada TELESTATIONS, INC., a Wyoming corporation, ERN KITV, VALLEY ISLE Defendants-Appellees, dba PUBLISHERS; MOORE; REID; RICK GEOF-
LESLIE SILVA, KAMALII, BOYD Defen- FREY and KINAU SHIRAI, dants, and SCOTT Cross-Appellants, INC., KHON-TV, dba KHON- corporation, a Delaware TV; KHVH, INC., KHVH corporation, a Hawaii dba INTERNATIONAL, RADIO; PRESS a New UNITED I-XX; DOES and JOHN DOE York JOHN corporation; I-XX, Defendants CORPORATIONS
NO. 7519 (CIVIL 51880) NO. FEBRUARY 1983 J., MENOR, NAKAMURA, RETIRED JUSTICE J., RECUSED, ACOBA, LUM, CIRCUIT JUDGE IN PLACE OF RECUSED, PADGETT, J., AND IN PLACE OF TSUKIYAMA, JUDGE IN PLACE OF CIRCUIT HAYASHI, J., RECUSED* * case, Richardson, argument who Chief Justice heard oral this retired from the (1979 Supp.) provides: court on December 1982. HRS 602-10 “After oral § case, any justice argument vacancy if of a if a arises or other reason a is unable to case, may disposed upon continue on the the case be decided the concurrence of filling vacancy justice.” any place three members of the court without or the of such *4 NAKAMURA, OF
OPINION THE COURT BY J. Once before us again question published is whether criminality may have the bounds imputations transgressed constitutionally We to protected speech press. are asked twо officials can to trial on proceed decide whether their host against defamation suit a of defendants from the press legislator2 media1 and a State and whether the the electronic through discovery should have access legislator process her may of the Honolulu Police aid Department records may if determine the two forth with go defense the action we The circuit court awarded the claim her. against summary in favor of the and all of media defend legislator judgments Isle) Isle Publishers and its Valley (the Valley ants save conclude, however, that the officials ought officers. We be were also prove they afforded an defamed and opportunity Press International damaged (UPI) the United and the she should be legislator given opportunity and that an show not other jeopardize such access would inter important public ests.
I. A. Larry (Mehau) The are E. Mehau and Moses plaintiffs W. (Kealoha) Kealoha who were members of the State Board of times; Land and Natural Resources during relevant thе com- plaint they essence avers were defamed untrue accounts of their gross criminality. genesis the controversy was a 2,1977 of February KHON-TV newscast the head of reporting the local criminal then sat on an “syndicate” important State Corporation, corporation, include Gannett Pacific a Delaware The defendants Inc., Star-Bulletin); (the Enterprises, a Lee Delaware Honolulu Star-Bulletin dba Tribune-Herald, Ltd., (KGMB-TV); corporation, a dba KG.MB-TV Hawaii Nevada Telestations, Tribune-Herald); (the corporation, Western dba Hawaii Tribune-Herald KHON-TV, Inc., Inc., (KITV); Wyoming corporation, dba KITV Delaware KHVH, Inc., (KHON-TV); corporation, corporation, a Hawaii dba dba KHON-TV International, (UPI); corporation (KHVH); a New York Press KHVH Radio United Publishers, corporation published Valley which Isle a Hawaii Isle Isle). (Valley Boyd legislator Kamalii who was then a member of the State House is Kinau Representatives. *5 138 rumors of Though
board.3 a “Hawaiian Syndicate” and its months, “Godfather” had been afloat for the newscast was the report by initial the establishеd news media concerning his actual identity. Isle,4 Valley a new Maui
Subsequently tabloid without a “track record” for reliability, published story quoting brother, Helm, Helm his Adolph saying Jr.,5 as late George had named Mehau as “Godfather” of Hawaii’s underworld Stone, crime.6 Dennis a UPI learned of the reporter, article a radio on the through employee day station its publication, News, then called the Maui June 1977. Stone a well- established Maui semi-weekly newspaper, and had a staff 3 Shirai, However, story, responsible for the Scott the newscaster KHON-TV and of a settlement effected between them- from the suit as a result have been dismissed Appeal, plaintiffs. Record on at 1034. selves and the See 4 defunct, Isle, bi-weekly published on Maui Valley was then a tabloid now begun copies. publishing press thousand It had had a normal run of twelve which charge to shortly without readers. before then and was distributed George who had a leader in the native Hawaiian movement The late Helm was against protest the island of Kahoolawe disappeared participating in a the use of while military. target by the as a island paper composed lengthy story appeared in the 15issue of the was June anonymous persons Adolph Helm. This statement purported interviews several among ascribed to Helm: was those looking organized George doing heavy trip wide George into crime. was Larry maybe people publicly and named Mehau open. in front of He came out going expose higher up. “godfather.” people He said he was And he named as the happening. corruption that was all the them and anonymity persons displayed who desired statements attributed The article also following appeared in prominent one them: boxes. The you Valley What did see? Isle: (both Larry Kealoha of the State come in with Mokiki I saw Mehau A: Resources). thought they probably I Department Natural of Land and coming tap in to the owner. mean, you ‘tap’? Valley do Isle: What money. protection up for HitA: supposed Why you to be Valley Are Mehau and Kealohа would think that? Isle: something? syndicate or Sure, everybody knows that. A: they What did want? Isle: left, somebody George they George. they what They asked After talked to A: it, said, ‘They else.’ told me to cool He wanted. linking elements here and elsewhere. Mehau with criminal were other statements There *6 attempted to him. He then story of the read portions member to seek con presumably Helm by telephone, Adolph to reach Helm, but was unsuc to statements attributed of the firmation father, who told him instead to Adolph’s He spoke cessful. threatened Mehau. Helm, by had he had been Jr. said George by Isle article that read Valley on the were parts the Relying Helm, George the statement of News and employee the Maui be trans Sr., news release and caused to composed Stone A follow-up story wire to its subscribers.7 mitted over the UPI Adolph after to Helm.8 spoke was also transmitted Stone B. thereof, course, and story coverage The Isle UPI’s radio, and television attention. press, widespread attracted service, Tribune-Herald, tо the news for one a subscriber the UPI releases on story substantially replicating published of the controversial And after the article. day publication the story it followed with another through on June to a about the Ariyoshi’s response query Governor reporting story over its wire UPI read: first disseminated missing George Adolph Hawaiian activist Helm Helm ... brother ... was quoted today biweekly Valley naming Big in the Isle Press as State Land Board Larry member Mehau as the “Godfather” of Hawaii’s underworld crime. Island brother, quoted reveling Adoph as that his now Helm also was feared [sic] [sic] dead, him Helm a musician at Honolulu’s said Mehau threatened when was Gold George brothers’ father confirmed that Helm said he Coin Restaurant. The Helm died, apparently George repreatedly Before he Helm told his threatened. [sic] organized Adolph crime. Helm also he a lot to reveal about Hawaii’s brother had Ho, manager singer fingered Lipske, reportedly Don as Marcus believed syndicate. with the mainland local underworld’s link 8The second release read: Hеlm, missing George Adolph feared dead activist the brother of and Hawaiian Helm, George today many Helm told of his followers that State that revealed Larry Big Resources member Mehau Island is Board of Land Natural Helm, godfather underworld. interviewed at his Molokai residence of Hawaii’s people prior a March ‘invasion’ Kahoolawe said his brother told 40 up’ deeply organized people Quote—‘higher involved and other Mehau — saying planning expose quoted as them his brother he was and ‘all crime. Helm apparent corruption happening.’ past death this March is that was Helm’s County being investigated by Maui and the F.B.I. believed accusations in publication, the Maui a response which essen- tially was a defense Mehau’s character. Others who were not UPI published subscribers broadcast varying reports on the These, however, controversy. consisted main of the Governor, officers, reactions of the other public public figures, organizations earlier reports plaintiffs’ link to the nether of organized world crime. charges
KGMB-TV telecast reports leveled against UPI, the Maui plaintiffs by tabloid as repeated well thereto, as the reactions between the 15th and 22nd of June. Mehau was as the Though reputed identified “God- *7 fether,” the telecasts mentioned the invariably source of the Star-Bulletin, KHVH, accusations him. The against and KITV accusations, also carried accounts the published but like KGMB-TV much of their thereafter to reporting devoted the thereby reaction and to statements issued public engendered by officials, other public public figures, organizations and relative to Mehau’s And these media defendants in character. their articles, broadcasts, and telecasts likewise noted where the charges originated.
C. created by The issue the KHON-TV newscast of public 2, story the Valley 1977 and Isle February relentlessly in of the by Kamalii the halls pursued Representative legisla- beyond. Shortly expose' ture and after the purported by Scott “Godfather,” of a was the Shirai that a member State board resolutions in the House of she introduced two State Represen- resolutions, tatives, which was then session. The House and their objects legislative Resolution Nos. 292 had as into made Shirai and allegations by Scott probe twenty- for also four hour him. She issued police protection General and the House calling upon Attorney statements investigations to launch Judiciary on into the Committee House, Speaker General and the of the Attorney charges. however, of such responded publicly investigations nature to pursue. more matters And the properly police were Kamalii sponsored by Representative resolutions failed of Repre- the House by for adoption from committee emerge sentatives. her to publi- continued efforts nevertheless legislator closing this setback and despite
cize the accusations 6, 1977, fostered the publica- she April session. On legislative entitled “Answer Asked in the an article Star-Bulletin tion of at a meeting and while speaking Charge,” ‘Godfather’ after the crucial shortly story of Commerce Kailua Chаmber Islé, the “God- she identified Mehau as Valley appeared of her involvement not mark the end But this did father.” Isle after by interviewed she was also controversy; her innuendos that story containing and a meeting the Kailua one same Mehau were and the appeared and “Godfather” organ. issue of the news in a subsequent D. their eleven count complaint Kealoha filed Mehau and defendants, unnamed, on both named numerous against submitted After were responsive pleadings June efforts discovery served and extensive who were the defendants defendants, summary judgments both plaintiffs in favor of the granted court judgments The circuit sought. KGMB-TV, KITV, Tribune-Herald, Star-Bulletin, It KHVH, UPI, Kamalii. denied Representative *8 orders Isle and its officers. The by motion filed were certified thereafter as summary judgments granting court, and the plaintiffs perfected circuit by appealable in turn Kamalii Representative court. to this appeal their to have the attempt her foreclosing order from an appealed records and documents Department prоduce Honolulu Police her interests protect others in order to Mehau and related to appeal. on their succeeded the event plaintiffs II. A. 1. The First Amendment “a represents profound national commitment that debate on principle public issues uninhibited, robust, wide-open, should be and and that it may vehement, caustic, sometimes well include unpleasantly on sharp government public attacks officials. Termi See 1, 4; v. Chicago, Jonge Oregon, niello 337 U.S. De 299 U.S. Sullivan, 353, Times 365.” New York Co. 376 U.S. But “erroneous statement (1964). 270-71 is inevitable in free debate,” “it must be if the freedoms of protected expres the ‘breathing space’ sion are to have they ‘need ... A (citation omitted). survive.’” Id. at 271-72 rule of law that in such engage one who would debate “to compels guarantee the truth of all his factual assertions —and to do so pain on unlimited in virtually libel amount —leads to a com judgments ” Id. at Would-be critics parable ‘self-censorship.’ “may 279. be criticism, from their even it is voicing though deterred believed true, though true and even it is fact because of doubt be be in court or fear of the proved whether can expense to do so.” Id. having by need to avoid the news media self-censorship
Yet “[t]he is . not the societal value at issue” where erroneous only . . statement to the conduct of officials is con- relating Welch, Inc., (1974). Gertz v. Robert 418 U.S. cerned. of “the protection that the absolute communica- Recognizing total tions media . . . result sacrifice [would in] id., defamation,” value served the law of competing sought Court has accommodation between Supreme “proper “a measure of stra- by extending these concerns” competing falsehood” uttered tegic protection defamatory at And “the level of constitutional protection media. Id. of a public person” the context of defamation appropriate Sullivan, supra. in New York Times Co. v. Under defined standard, *9 this who, reason by notoriety their achieve-
[tjhose and ments or the success with which seek the vigor they attention, are classed as and properly public figures public’s governmental may those who hold office recover for injury on clear reputation only convincing proof to falsehood was made with of its defamatory knowledge reckless for the falsity disregard with truth. This stan- administers an extremely powerful dard antidote media self-censorship inducement to common-law for liability rule strict libel and slander. And it exacts a high price from the victims of correspondingly defamatory Plainly many deserving falsehood. plaintiffs, including subjected some will intentionally injury, be unable barrier of the surmount the New York Times test. Id.
The Fourteenth Amendment rendered upon incumbent of strategic to extend this “measure to media protection” us for against damages whom defamation are sought defendants Thus, officials courts of the State. public the New reviewing York Times decision and its [ajfter Tagawa defined “actual malice” in progeny, we v. Maui 648, 652, Publishing (Tagawa II), Co. 50 Haw. 448 P.2d denied, 337, 340, cert. (1968) U.S. 822 as “‘deliberate i.e., truth, or ‘reckless disregard’ falsification’ of facts awareness, reckless publication despite high degree harbored publisher, probable falsity statements.” published Nishiki, 1145, 65 Haw. 653 P.2d
Rodriguez (1982).
Whether the test of “malice” enunciated in New York in Gertz is suits applicable Times restated defamation against nonmedia defendants was brought by public figures Nishiki, Rodriguez supra. Initially, we decision posed regard “it at least generally recognized, is now observed fig- officials involving public actions defamation ures, malice is that the New York Times standard actual *10 144 to both media and
applicable
nonmedia defendants.” Id. at
436,
(citations
P.2d at
omitted).
653
1149
We further sensed a
protection
denial
this strategic
to nonmedia defendants
result in the anomalous situation
“would
where media defen
dants, with a greater
for
capacity
damaging an individual’s
because of their wide
reputation
information,
dissemination of
be accorded
than
greater rights
would
other
in
speakers
437, 653
Id. at
P.2d at
And the
society.”
Court,
1149.
Supreme
noted, “while not articulating
we
a standard explicitly applica
defendants,
ble to nonmedia
no
has made
distinction between
media and nonmedia defendants
has
and
further abandoned
dichotomy
the traditional
betweеn libel and slander actions.
St. Amant v.
e.g.,
Thompson,
See
U.S. 727 (1968) (tele
Louisiana,
vised
Garrison v.
speech);
(1964)
If is about defendant’s state dispute there a factual mind malice, summary should regard judgment with actual As the Court granted. Supreme recently not be noted Proxmire, v. (1979), U.S. 120 n.9 Hutchinson malice’ calls a defendant’s of ‘actual state proof “[t]he Sullivan, into New York Times Co. v. question, mind lend does not itself to (1964) readily summary U.S. 254 disposition.” which higher than the standard proof
Other law, the must as a matter of normal plaintiff carry summary should be followed in “actual procedure malice” judgment actions. defamation Nishiki, 1151. Haw. 653 P.2d at at
Rodriguez
B. set forth these embark Having governing precepts, we on of the circuit court’s award of summary an examination judg- Isle, defendants other than the Valley ments to media grant for discussion the reserving subsequent summary Kamalii because of the Representative possibility judgment from incumbency may also have freed her being that legislative account for her utterances. called to note there no that Mehau and question At the outset we is of damages from the recovery whose plaintiffs Kealoha are showing of “actual malice.” upon is conditioned a defendants We further observe there are substantial differences between the relevant conduct of UPI and the actions the other media calling defendants for a separate consideration of UPI’s possi- liability ble for defamation damages from thаt faced by the others. UPI’s putative accountability is addressed first.
The circuit
summary
court’s
judgment awards in favor of
all the media
except
defendants
Isle
display keen
of one of
appreciation
implicated
the societal values
in a defa-
nature,
mation suit of this
need
avoid self-censorship
“[t]he
Welch, Inc.,
by the news media.”
Gertz Robert
The case First Amendment litigation clear Supreme Court renders it
147 is reason- not measured whether a conduct that reckless have have or would man would published, ably prudent There must be sufficient publishing. before investigated the in fact the conclusion that defendant to permit evidence as to the truth of his publication. serious doubts entertained v. U.S. at 731. See also Curtis Thompson, Amant 390 St. Butts, (1967); U.S. v. Publishing Co. Garrison Louisiana, asserts in defense of its U.S. at 74. UPI publica- Stone, that Dennis defamatory tion material reporter therefor, “had no serious doubts their concerning responsible charges, and he was not aware of which any truth facts reasonable as to their further question validity.” raised It any no reliability “had serious concern as to the claims he [t]he charges and if “the were distorted in sto- Valley Isle” Stone’s ries, Yet, his rele- completely errors unintentional.” Court are teachings Supreme vant that in a defamation action a brought by defendant [t]he cannot, however, official a automatically insure he by testifying favorable verdict that published of must belief that statements were true. finder fact publication determine whether indeed made faith will good unlikely faith. Professions be good where is fabricated prove persuasive, example, story defendant, is of his or is imagination, product call. wholly anonymous telephone based on an unverified they prevail Nor be when the likely publisher’s will inherently only are so a reck- allegations improbable Likewise, have them in less man would circulation. put where there are obvious reasons be found may recklessness or the of his veracity accuracy the informant to doubt reports. omitted). (footnote U.S. at 732 Thompson, Amant
St. record, is only conclude “there we can review of From a *13 regard of mind with defendant’s state about factual dispute a Nishiki, 439, 653P.2d Haw. at Rodriguez malice.” actual from gleaned the information of treatment 1151. UPI’s at a new source, publication the source was the fact that another “news,” and the ano sensationalizing given apparently pub- crucial some of the accusations authors of of nymity lished by Valley Isle are a few the factors we believe could lead to finding by a a jury that UPI’s republication of the charges criminality not “made in good faith” or they were such that a “only reckless man would have put them in
circulation.”
Amant v. Thompson,
St.
The two news releases transmitted over the UPI wire were received Tribune-Herald and republished with a few minor and the changes addition of two paragraphs to the second release that did not alter materially their content. The plaintiffs urge the Tribune-Herald’s culpability under these circumstances cannot be distinguished from that of the wire service. We disagree.
The Tribune-Herald was a subscriber to one of the leading States; news services the United it had no reason to question reliability as a organization news gatherer. Plaintiffs nonetheless would have us impose duty prior investigation upon Tribune-Herald. A clearer inducement than this to the media self-censorship decried Supreme Court would be difficult conjure.
The record indicates the Hilo made newspaper unsuccess- ful to reach Mehau for comment attempts when dispatches 17,1977 the story were received and in its June appearing issue noted these efforts to seek a response charges. Other than this, what Tribune-Herald’s articles appeared was what UPI had transmitted. The neither newspaper slanted nor wire, what off embellished was taken and the record is barren of indication that its any the stories publication did not constitute faith” “good reporting news substantial No basis for a public possible jury finding interest. that there for the disregard was a reckless truth appears. defamed, the plaintiffs may
While
have been
the First
Amendment exacts
high price
from
victims
possible
defamatory falsehood who hold
office.
Gertz Robert
Welch, Inc.,
We are the opinion was a reckless from infer there jury may evidence which public dispute the for the truth in the of disregard reporting of other elements the the Isle on the Valley part'of fanned news media. of the member the electronic was probably
KGMB-TV the widest its coverage; reporting controversy the giving media flung by Valley the Isle еxtended incriminatory charges of the the all Naturally, reports of named eight days. period over a But the invari- the “Godfather.” station also as putative Mehau the as the the source of article the charge identified ably Furthermore, the repeated regarding tabloid. statements Maui underworld were aired in reputed leadership Mehau’s and on with other comments views the controversy, connection officials For expressed by public figures. those and particularly on focused Representative June newscast example, of the reproof Governor and Chairman Kamalii’s for board on which Mehau served Mehau’s coming State And telecast of June devoted for the most defense. Ohana and the organization’s to Protect Kahoolawe part Valley and criticism the Isle’s “yellow defense Mehau journalism.” defendants, the Star- media remaining
The entries station, and Bulletin, KHVH, radio (a newspaper, and KITV into the then contro- raging respectively) station a television began Their involvement relativеly late. came versy Valley Isle UPI reaction Governor’s reports engendered had stories, coverages dispute their report- confined thereafter largely interest much public statement also aired the they Thus reactions of others. ing Repre- the reactions County, Maui of Police of the Chief County of City Fasi of the and Mayor Kamalii sentative character, and of Mehau’s defense to the Governor’s Honolulu and organizations figures other public expressed views Governor, Isle. Mehau, and the relative the evidence Viewing presented the circuit court in the light plaintiffs, most favorable we still arrive at a conclusion that a could not jury reasonably find actual malice with con- *15 KGMB-TV, the vincing clarity where actions of the Star- Bulletin, KHVH, concerned; and KITV are the recklessness Sullivan, by demanded New York Times Co. v. supra, just does not appear.
ill.
against
from the claims
the media
Turning
defendants to
defendant,
lone
against
the claim
the
nonmedia
we reiterate at
that
the outset
when defamation actions are brought by public
officials the
malice” standard is
“actual
applicable “without
designation
to the
as a ‘media’or
regard
publisher’s
‘nonmedia’
Nishiki,
437,
Rodriguez
defendant.”
A. Kamalii’s in Representative involvement the debate public character, observed, on Mehau’s as we antedated the publica tion of material the Isle. defamatory plunged She his controversy surrounding into purported Jekyll-Hyde in by introducing two resolutions personality State House after first Representatives shortly reported KHON-TV overlord of local crime also sat on an important public board. But her direct reference to Mehau as “Godfather” came legislative after the close 1977 session and the demise of resolutions,9 and at a of the Kailua meeting Chamber of III, 9 Although provides “[a]ny that bill Article State Constitution § regular year adjournment pending of a session in an odd-numbered shall at the final session,” rеgular carry provision there is no over with the same status next viability beyond adjournment of of resolutions the session which extends they are introduced. Still, no we have said there are temporal Commerce. suit on the from afforded immunity limitations spatial Abercrombie v. III, of the State Constitution.10 Article See § 594, (1974). 525 P.2d Haw. McClung, 55 is whether accusations that were not hurled then question “in the were nonetheless made exercise of setting a legislative Id. legislative . . . [Representative Kamalii’s] function[s].” made “any allegedly by... claims statements legislator the ‘Godfather’ of the Hawaii criminal respect [her] since “were made in absolutely privileged they were syndicate” House Resolutions Nos. 292 and 293 which clarification concern.” She legitimate legislative matter subject her the remarks were uttered exercise “of maintains and to function ... to informed serve keep public legislative It cannot be denied that crime in Hawaii interest.” of prime legislative its are matters concern perpetrators *16 of legislative would informing public proceedings and Nevertheless, interest. we hesitate to affirm further Kamalii on the basis judgment Representative the award record For what little there is in the record presented. of the in settings relative to the statements and the which were they not with situation like in made tells us we are confronted a McClung, supra. Abercrombie slanderous statement allegedly by Senator McClung in an interview conducted in his legislative was office a passed hours after a on the floor of the Senate in which he speech few University discussed the of Hawaii and its In our faculty. reviewed the history pertinent immunity decision we intent of the delegates clause and found the Constitu- tional Convention of 1950 was extend broad immunity But was effective recognized immunity only we legislators. III, 7 of the Constitution reads: Article State § legislature any No member of the shall be held to answer before other tribunal any legislative taken in the exercise of the member’s for statement made or action shall, functions; legislature except felony in all members of the cases or brеach during peace, privileged their be from arrest attendance at sessions of houses, going returning respective to and from the same. their any “for statement made or action taken in the exercise of... Const, legislative functions.” Ill, See Hawaii art. 7. And the § scope concluded, actual of the privilege, we was left to judicial determination “on a case case basis.” Abercrombie v. McClung, 55 Haw. at P.2d at 597.
That Senator McClung’s erroneous statement of fact regarding Plaintiff Abercrombie’s involvement in an activity condemned earlier on the floor Senate was in the exercise Senator’s is legislative functions beyond here, cavil. But an immunizing Representative nexus between legisla- Kamalii’s tive tasks and her identification of Mehau as the “Godfather” of local crime is not so readily discernible. The averred slander occurred after the adjournment the legislative session in which the two resolutions stimulated by Scott Shirai’s expose' introduced; the session’s also closing marked the demise for proposals lеgislative policy declarations. And a remark defamatory crucial ascribed to the defendant came in a delivered speech purportedly group Windward Oahu businessmen a lawmaker whose constituency resided in Waikiki and Kapahulu. be remiss if agree
We would we were to with the circuit court on the record for skimpy proffered review that the legis- legislative lator undisputably performing function rather a partisan than chore as political plaintiffs contend. For the far, facts uncovered thus viewed a most favorable for light do not lead to an plaintiffs, inescapable conclusion that the post-session remarks of representative were constitution- ally privileged. “[Sjummary procedures present a treacherous record issues of deciding far-flung import; ... is part administration good judicial to withhold decision *17 ultimate . . . until the questions presents record a more solid 472, 476, basis.” v. Zimring, State 52 Haw. 479 P.2d (1970) (citation omitted). 204-05
B. decided the Having summary judgment award premised the on claimed was not we turn privilege justified, of whether “there is a factual question [remaining] dispute . state of mind regard about.. to actual legislator’s] [the
153 Nishiki, at P.2d 653 Rodriguez Haw. at malice.” Representative appeared, When the Isle article Valley publicly it a reason for on as apparently pounced Kamalii in the inter Yet Mehau as criminal.11 characterizing an arch tabloid, she equivocated in a issue of the later published view to her. Her put about Mehau was specific question when a he or that is the say ‘godfather’ “I can’t that he response was the “name” circulating If for her basis ‘godfather’.”12 isn’t the story, Isle factors Valley was the the “Godfather” for defamation that render UPI liable could considerations a reckless only to a that finding jury lead could likewise in circulation. See St. have the “name” put would person Thompson, Amant U.S. at 732.
IV. awarded summary judgment The decision set aside compels Kamalii our consideration of issue Representative the circuit its in her whether court abused cross-appeal, raised authority when foreclоsed discretionary attempt following Representative plaintiffs Kamalii made the statements at the aver meeting: Kailua Chamber Commerce just Adolph the “name” on that Helm has released Maui I been informed have big Larry you is that of island rancher Mehau. tell here. The name I will therefore Valley questions put story published consisted of a series of Isle thereto, including responses Representative and her these: Kamalii organized Valley that Mehau involved crime Isle: You had information this time? before Well, investigation put way: When I me it this called Scott Kamalii: let (that Board), only charges “godfather” on a State name that sits Shirai’s Larry any pin really people whispered Without evidence to halls was Mehau. him, people saying name elected officials and course. But the his it on proof responsible reporters people on the street. But there was no concrete extremely makes it difficult. is so. That’s what this why you mentioned his name? That's haven’t Isle: However, many naming wrong. people Right. Ido the name is know Just Kamalii: police being put together you some of the investigated. this can talk to To are that he is known to have been seen with so forth and find and so on and officers get get people lot of to talk. You the birds people. But it’s hard to underworld “godfather” say that he flocking together that he is the isn’t situation. So I can’t only ever heard in that name that I have context. “godfather.” that is But *18 of evidence records of the discovery obtain Honolulu purportedly that would her Department “support Police defense truth.”
A. Kamalii Representative initiated her discovery efforts by serving notice deposition a subpoena duces tecum upon Custodian of Records of the Honolulu Police Department. When this failed to yield evidence considered defense, material to her she caused a subpoena duces tecum to Police, be served on the Chief of directing Chief or an authorized subordinate to produce “any documents, and all records, reports, memoranda of or relating to” Mеhau and/or and a number of other persons. The Corporation Counsel of City County & Honolulu (the City) he responded; informed defendant’s counsel letter by that the Police Depart- ment would “not be able to with the comply subpoena . . . without a court order delineating the protection the Police Department its requires documents.” He suggested instead of a motion to filing so compel discovery the circuit court could limit “to properly discovery relevant matters not other- wise An order privileged.” compelling discovery was subse- entered on defendant’s motion. quently order, Rather than advising compliance with the the Cor- acting Counsel on the poration City’s behalf then moved for a decision, of the circuit reconsideration court’s asserting sought by records defendant were “protected under the privileges Tighe City contained County Honolulu.” The motion was an supported by affidavit of the Chief of Police inter alia that a stating release of the documents would disclose the identities who persons supрlied information on assurances that their names not would be revealed. court that the agreed records were and an order privileged, granting the motion for denying reconsideration and the motion to was entered. The compel discovery denial discovery to this court the defendant appealed plaintiffs’ after inter- from the locutory appeal summary judgments was allowed the circuit court.
B. Procedure, like the federal of pro Hawaii Rules Civil The rules, a to a a that civil philosophy party reflect basic cedural of all relevant infor entitled to the disclosure action should be trial, unless person prior of another possession mation in the Lum, 1 Haw. is Kalauli privileged. App. the information 1239, HRCP; 284, 287, Rule (1980); 1241 26 8 C. 617 P.2d 2001, Miller, Practice and Procedure at Wright A. Federal & § 420, County, Tighe City & 55 Haw. 520 (1970). Citing 15 of Hawaii of and Rule the Rules Evid (1974), P.2d ence,13 sought by the information the defen argues the City sought by It maintains the documents privileged. dant is indeed in an gathered ongoing police contain information defendant may the as well jeopardize probе and their release investigation that should be inviolate. kept as identities reveal Tighe we has been held that acknowledged generally In “[i]t be no absolute governmental privilege insulating there should in from ... the absence police discovery specific records [of a] a such Id. at granting privilege.” statute 520 P.2d at statute, we found no such the Although 1346-47. we said in of interest “[pjublic preservation confidentiality secrecy of may police be sufficient reason for insulation or other from in governmental discovery special, records individual of But further held the “claims privilege cases.” Id. we such on this require argument by records basis documentation and asserting governmental agency privilege, and subse- Id. evaluation quent judicial claim[s].” Evid., provides part: in Rule Haw. R. government privilege. state or subdivision thereof has a (a) The a Rule identity person a who has furnished infor- privilege to to disclose the refuse possible assisting investigation of a violation of law relating in an to or mation legislative or its staff member of a committеe officer or law enforcement to a conducting investigation. an evidentiary privilege the identities of Although not disclose rule iterates this violations, governs the use of such furnishing on law persons information pre-trial discovery, us we do before is related at the issue trial. Since information here. question applicability of Rule 510 not reach argues Kamalii circuit court erred in
Representative privilege assertion because City’s requisite upholding lacking. She also contends the circuit documentation was to conduct an in camera inspection court’s failure constituted an abuse ruling question prior records that the affi- proposition counters with City discretion. corroborated its claim adequately Police davit of the Chief outweighed in law enforcement interest and there was no obtaining discovery interest defendant’s look at the records. for an in camera need is a of a criminal reason for “pendency investigation investigative reports,” Swannerv. United discovery denying States, *20 716, 1969), Cir. circuit court (5th 406 F.2d 719 dealing been with a individual case” “special, well have may of . police “reason for insulation . . records there was where City County, 55 Haw. at Tighe & discovery.” from is one of indefinite privilege Yet the seldom P.2d at 1346-47. duration, usually has “a reasonable underlying inquiry for the Baker, 35 F.R.D. Capitol Vending Co. terminus.” of time since the circuit Thus the 1964). passage (D.D.C. circumstances, a cur have altered the may court’s ruling claim of would best serve City’s privilege rent evaluation concerned, as judicial economy.14 of all as well the interests Star-Bulletin, the in favor of the summary judgments affirmed; KITV, KGMB-TV, KHVH are Tribune-Herald, and Representative in favor UPI summary judgments pro- remanded for further case is set aside. The Kamalii are opinion. with this consistent ceedings matter, not Though is vested with discretion in this we would circuit court inspection an abuse of any to conduct an in camera of records decision consider discretion. inspection put position to the circuit court in a better such an would believe We also justice require. protective orders whеre the interests fashion him on the Pavey Ann with (Judith C. Schutter
David Schutter, A Attorney-at-Law, Corpora- Law briefs; C. David tion, counsel) for plaintiffs-appellants. Paul, brief; on the Paul him (James Alston T.
Paul Alston, UPI. counsel) for defendant-appellee Johnson & Hawaii for defendant-appellee Christensen K. Steven Tribune-Herald. Watanabe, Sugita & (Kobayashi, Wm. Matsui
Clyde Kawashima, Enter- Lee for counsel) defendant-appellee prises. Anderson coun- J. Dezzani & (Goodsill', Quinn,
David KHVH, Gannett Pacific sel) defendants-appellees Corp. for & Inc. him Greeley (Genevieve H. S. Richardson with
Burnham Carlsmith, Carlsmith, Case, brief; of coun- Wichman on the & Western Telestations. sel) defendant-appellee briefs; (Donna L. Turk M. Woo with him on the David Turk, A Attorney-at-Law, Corporation, L. Law David Kamalii. counsel) for cross-appellant Chang on Faye Koyanagi brief), Deputies W. K. {John Counsel, City of Hono- County for Intervenor Corporation & lulu. N. on the brief for Y. Kim defendants-cross-
Edward Moore, Isle, Reid & Silva. appellants *21 AND DISSENTING OPINION OF CONCURRING JUDGE TSUKIYAMA CIRCUIT Hawaii Tribune as to all Defendants except I concur view, exists as Herald, the same issue of fact my Ltd. In (HTH). pat- faith” UPI and HTH in publishing of both “good statements. defamatory ently thoughtful analysis to the majority opinion’s
I subscribe the of the issues disposition which govern legal precepts the However, in judgment that a my opinion summary is herein. specifi- which must be there are other considerations setting First Amend- in balancing and emphasized addressed cally of an to privacy individual against right ment guarantees lies. considerations against defamatory These protection reversal as HTH. require
158 Sullivan,
The mandate New York Times Co. v. 376 U.S. (1964), is that the public interest which is subserved First Amendment requires courts to shield any person or the established media from for liability defamatory lies about a public official unless the official can defamed establish with that the convincing clarity defamatory lies were made with “ - is, ‘actual malice’ that with knowledge that it was false or disregard with reckless of whether it was false or not.” Id. at The essence of disregard” “reckless “good is faith.” St. Amant v. Thompson, U.S. (1968). qualification “good
The
faith” reflects a modicum of
for the
protection
individual
official which
public
the Times
recognition
rule allows in
of the rights
public
official as
an
individual.
distinction between the
official
public
as a
public servant and as an individual was
in
aptly expressed
dissenting opinion
Thompson,
Amant
St.
supra, and
Co.,
repeated
Tagawa Maui Publishing
In the Times rule in a applying judgment summary setting, recognize we must that this rule does not confer upon any person or the established media a license to publish defamatory lies about a official. Neither nor public Times its progeny any would hold that First Amendment immunizes person or the established media from civil defamation. liability is it suggested, certainly conclude, Nowhere we not should that Times the courts to requires place premium reck- upon less lies ensure the ascertainment truth to presume that is interested in or benefits from public such defamatory lies about the personal qualities public activities of officials.
In the process balancing First Amendment guarantees of a against rights public individual, official as an we must be of the existence of public mindful intеrests which compete is particular protected interest which the Times is axiomatic is public rule. It interest subserved by uninhibited, and wide-open robust debate on issues and officials and that the dissemination erroneous information protected must as a concommitant of such debate. On the be *22 hand, by other interest is also subserved the recruit- public ment and officials competent public retention of ascertainment of truth.
A public official is not his stripped private identity office. To an integrity by expose virtue his individual to reckless and vicious lies of a nature defamatory personal with- out or therefor an providing any remedy opportunity vindi- cation, merely because the individual a few provides hours of to the uncompensated service would public, effectively dis- sensible, courage any highly qualified individual from consent- ing service. The absence of public such individuals from public service would be clearly contrary best public’s interest.
We must be sensitive also to the public’s interest which is subserved by the ascertainmеnt of the A truth. summary judg- ment against a public official in a defamation action terminates the legal proceeding which is intended to provide the parties with an opportunity of demonstrating, and the public of deter- mining, the or truth falsity the defamatory matter published. It thereby precludes ascertainment of truth and deprives public basis for any the vindication or condemnation of the public official. Unless there is no clearly genuine issue of material fact for consideration a jury, a summary judgment in a defamation action creates merely doubt and suspicion and subserves neither the interest of the public nor the public official.
In imposing limitations upon First Amendment guaran- tees, the established media cannot be held to the standard an insurer of the truth of that it everything publishes. Such an obligation would stifle the effectively First Amendment. How- ever, the of a imposition faith” “good requirement publication defamatory statements about the personal qual- ities activities of a public official does not have the effect of on suppressing kind debate issues and officials which subserve the public’s would interest. St. Amant v. But, Thompson, supra. a summary judgment against a public official in a defamation action would definitely have effect of suppressing, and encouraging speculation distortions about, case, the truth. on the facts of Depending each the “good limitation which faith” requirement places upon First Amendment guarantees may indeed be de minimus as *23 to
compared irreparable loss public the resulting from of the truth and the suppression irreparable the injury to the official. public considerations,
In of the light foregoing it is my opinion majority that the opinion’s analysis, which leads the conclu- sion that there is a genuine UPI, issue as fact applies to HTH.
In determining whether there is a genuine issue of fact
toas
HTH,
the
faith”
the
“good
Court must address the question
of whether the statements
so
published “are
inherently improb
able that
a reckless
only
man would have put them in circula
tion”
Amant v.
St.
Thompson,
On June HTH a published virtually word-for- the story word account of UPI which was released on June HTH added the story headline “Godfather Named.” HTH made several unsuccessful attempts to contact Mehau to its of the publication initial UPI prior story.
The headline HTH be story composed could construed a as that there existed that implying “godfather” story and the identified him. The no merely story contained basis for this there was no persons and indication mak- implication any had facts or charge personal knowledge relative ing can no thereto. There be of the seriousness of the question their publication public statements made impor- is there of the any patently defamatory tance. Neither question allegations irreparable injury nature of and the would Moreover, untrue, if if official untrue. such public cause serve no better allegations purpose recklessly would than public’s public confidence in its officials undermine interest is not generally. public’s subserved government of the confidence in its offi- public’s government the erosion of defamatory cials as a result lies. what to be the circumstances appears surrounding
Given initial dissemination of the UPI there to be story, appeared for the of the It not urgent publication story. no basis does that a responsible investigation allegations prior appear would jeopardized public’s its have interest. publication public’s interest Indeed, allegations, nature given the thereof, defama- right against and the individual’s in the truth lies, only have been subserved interest would tory public’s allegations and balanced by responsible presentation and the facts thereto. pertinent as a member of the State UPI identified Mehau story HTH must alerted that he held a thereby Board and have Land In of the serious light trust. patently position *24 of position of the UPI defamatory story, nature a could find that the subject, jury allegations trust held that there was obvious improbable” were an “inherently veracity thereof. doubting basis for the entirely upon HTH asserted that relied UPI and that it had no reason to doubt its story accuracy true, assertions such accuracy. Even if these reliance malice,” “actual finding by jury belief would not preclude allegation was made with reckless defamatory i.e. that or assertions were disregard falsity. of its truth Similar Ginzburg, supra. responded Goldwater Reliance articles . . . and accurate newspaper upon upon which, letter are factors reprinting only another’s factors, of the probative publisher other are whether material was motivated actual when cumulated malice full material to be published. he caused the Repetition another’s does not release one if the responsibility words inherently that the words are repeater improbable, knows reasons to doubt the veracity there are obvious his accuracy report. or the Id. at 337. person quoted publication In the HTH’s surrounding circumstances I believe there exists a factual as story, dispute initial UPI HTH was made with “actual mal- publication to whether the ice,” could acting that a reasonable jury reasonably and further convincing clarity. “actual malice” with find to HTH. I reverse and remand as would