The Hawaii Attorneys General Are *Supposed* to Protect the Public Interest
The Deputy Attorney General’s attempt to ignore §662-15(4) erodes public trust in our legal system. This case has been, and continues to be, very costly to the Department of the AG, to Plaintiff, and to the Court, but not Defendant. Plaintiff has spent hundreds of hours just getting to this hearing and feels like the Government is abusing its power for the purposes of subverting justice.
All Plaintiff ever asked for was a written apology for what was clearly defamation (three witnesses other than Plaintiff verify the Defendant lied), but the Department of the Attorney General’s dismissal of statute, precedent, and the spirit of the law has turned this into an expensive lawsuit. Plaintiff strongly suspects that Defendant would have settled this issue long ago, given the indisputable, written evidence of three witnesses, if Defendant were not expecting to have free legal services to fend off Plaintiff’s struggle for justice and truth. All of this seems grossly unjust to Plaintiff, the person in this equation who would never knowingly defame someone, and who would certainly apologize if the error was discovered.
We ask that the Judiciary perform its most important Constitutional function of keeping such unprincipled and costly governmental activity in check, and serve the public interest by protecting all of our State resources and the court’s time as HRS §662-15(4) intended.
A Hawai‘i First Circuit Small Claims Court per diem Judge ruled on my Motion to Disqualify the Department of the Attorney General from representing a State of Hawai‘i public school teacher who committed defamation against me which caused a whole host of problems for me as a result. A partial transcript is below. Click the "Island Justice" cartoon or this link to read all the court documents: Small Claims 2021
Judge Bautista: "Based on the court's review of the Motion and the Supplemental Memorandum filed by Ms. Ott, in addition the court's review of the Memorandum in Opposition filed by the Attorney General's Office, at this time, the court makes the following findings in connection with the motion.
"Number 1, the court does find that under HRS 662-16, the Attorney General's Office does have discretion to represent State employees in civil actions. The court also finds, based on the representations in the filings, that the Defendant in this case is a teacher employed by the Hawaii Department of Education, and therefore is a State employee. Again, based on the representations in the filings, the court finds that at the time of the incident that resulted in this claim, the Defendant was acting within her scope of employment by the State of Hawaii. And therefore base on those statutes, the Attorney General is permitted, by discretion to represent the defendant in this matter, again, not in a personal capacity, in her capacity as an employee of the State of Hawaii through the Department of Education.
"Now, what I can say to you, Ms. Ott, so given my findings, I am bound to deny your motion to disqualify the Attorney General at this time."
Judge Bautista: "Now, I know you're going to have questions. I'm going to stop you in advance and tell you, I'm not allowed to give legal advice. I would highly recommend that after the fact, not in a public forum in front of everybody now, but I'd highly recommend, you contact Mr. Phillips, after the fact, as a member of the Hawaii Bar and an attorney, and he should be able to answer your legal questions.
"My decision is based on the findings I just made, and it is well-grounded in the current law. Okay? And so, at this point, the next step is going to be to set the case for trial if there is no possible settlement. …
Okay, Ms. Ott, any final questions?"
Plaintiff: "Yes. I'm sorry your honor, but could you explain to me, in statute 662-15, the one that says it does not apply to defamation, assault. What does that mean that this Chapter "does not apply" in cases of defamation?"
Judge: "That's exactly the kind of question, Ms. Ott, that you are entitled to an answer on, but that's exactly what I said, what I meant earlier, I can't answer those questions. I'm not allowed to. Okay? So, I just want you to know, it's not that I don't want to help you, or personal, it's just..."
Plaintiff: "I understand, but you ruled on this, right? So, I'm just wondering" [interrupted]
Judge: " Yes. Ms. Ott. Ms. Ott, you have an attorney, Mr. Phillips who's offered" [interrupted]
Plaintiff: "No, I'm sorry, he's not my attorney! I'm sorry your honor. I'm sorry that I even asked Mr. Phillips to be here because he's not my attorney. He's only my friend. I did not hire an attorney. I'm just trying to" [interrupted]
Judge: "Ms. Ott. I know that Ms. Ott. Ms. Ott, wait for a minute. Just relax. Take a breath. Listen. I know he's not your formal attorney. I established that at the beginning of your motion. Okay. What I'm saying is, I'm not going to, I've got to tend to all these other case, and I've got a trial set now, at 2:30, that's already waiting. Not only do I not have the time, I'm not allowed to give you legal answers to these questions. All I was about to suggest to you is, if Mr. Lunsford is there for you as a friend, which is what he represented, then you should be asking him, offline separately " [interrupted]
Plaintiff: "Okay. I'm sorry, your honor, but I *did* ask him, and he thought I had a very good legal argument here. So, so, he just thought that, and I'm just trying to to find out why you ruled that that doesn't apply? What does it mean, "doesn't apply," that the Chapter doesn't apply.? You made a ruling on this, and I'm just asking about your ruling. I'm not asking for legal advice."
Judge: "Ms. Ott, my ruling was not, nothing to do with whether or not the Defamation chapter applied or not. That was part of the arguments put forth. Alright? What my ruling was is, I cited and ruled that the Attorney General's Office is, by statute, is allowed at its discretion, to represent state employees in these matters. Okay? And then, I then confirmed that the Defendant, based on the representations, is a state employee, and the claims against her were made during the course of her performance as a state employee. That's all I ruled on." And based on that I'm not going to sit here and debate your other reading of the other statutes. That's not my job, and I cannot do that. I've made the ruling, "[interrupted]
Plaintiff: "I don't want to debate. I just want to know your reading of the statute. What does it mean, "it doesn't apply"?"
Judge: "Ms. Ott, listen to me. You're reading the statutes wrong.
"Okay, I was trying to be polite and friendly, like I try to always be. Now I'm going to tell you because you're pressing me, and I've got to move on. You're reading the statutes wrong. You need to either, offline, follow up with Mr. Phillips or go contact another attorney in this area of law that can advise you. Okay? I cannot. That's all I'm saying so I've made my ruling on your motion.
"Your case is still going forward. Didn't affect the disposition of your underlying claim. We just set you for mediation. Just gave you a new date on that first status. If mediation is not successful, you will still have your day in court for trial.
"All I did was rule on the motion to disqualify. Okay? I reviewed everything. I don't have the time to go through every single citation that you made in your motion, okay, and point out to you why it's not applicable to this case. Alright? That's all I'm saying. So, you need to really seek outside legal advice to get those answers. Okay? That's the best I can do."
If I can't get a judge to explain himself in Small Claims Court, I'll try another -- one that has the right of appeal should that become necessary. I'm going to keep trying to get an answer about Chapter 622 section 15(4) of the Hawaii Revised Statutes. (Click here to read the letters I've been writing to my legislators.)
What I thought would be a simple case that could be settled in small claims court has now become more time consuming, pressured, and is going to increase litigation expenses unnecessarily.
An excellent source of information on defamation is Publishing Information that Harms Another's Reputation from Digital Media Law Project. [The Digital Media Law Project works to ensure that individuals and organizations involved in online journalism have access to the legal resources.]
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