This part of "Ott v. Asuncion" is about my first legal attempt in small claims court to get justice for being defamed. In September/October 2020, my hanai nephew's Grade 7 SpEd Science teacher committed a pretty egregious act of libel (and probably also slander) against me for no apparent reason. My nephew asked his teacher to apologize and correct the record. I couldn't ask her because, as a direct result of the teacher's lies, the Principal had forbidden me to contact any of his teachers which was a big problem because I'm his tutor at home, and he has a learning disability. As of today's latest page update, the teacher has never spoken with me or written to me -- EVER.
So, I filed a legal claim against her in the State of Hawaii First District Small Claims Court on August 31, 2021 in the matter of defamation, and provided some pretty concrete evidence contradicting her lies (three other witness statements). At the first hearing on November 3, 2021, I raised my objection that the Hawaii Department of the Attorney General was attempting to be legal counsel for the Defendant which is contrary to the law. The per diem judge set a hearing for December 8, 2021 to address this.
At the December 8th hearing, the judge said he had considered my Motion to Disqualify Attorneys General from representing the Defendant in this lawsuit, Deputy AG Azuma's Objection to my Motion, and my Supplemental Memo on Statutes and Precedent supporting my motion. In spite of my strong arguments in favor of the motion, the judge denied my motion! My attorney friend and I were a bit surprised. My husband had predicted this would happen. He's the realistic pessimist in the family. Unfortunately, he's almost always right.
Chapter 662 of the State of Hawaii Revised Statutes (the law) is all about the State Tort Liability Act which are the laws governing how the Department of the Attorney General (the State's legal counsel) represents the state and its employees when sued. Section 662-15(4) Exceptions says the entire Chapter 662 does not apply in cases of defamation (and some other illegal offenses like assault, kidnapping, deceipt...). Section 662-16 says Attorneys General are authorized to be legal counsel for state employees who are sued "while acting within the scope of the employee's employment." My legal argument, one that's been made before, is that defamation, assault, kidnapping.... are NEVER within a state employee's scope of employment. Therefore, §662-15(4) should be in force, and enforced.
The judge did not agree, but he refused to explain his reasoning. He just said I was interpreting the statute "wrong," I should get an attorney, and if he explained why my spelled-out interpretation of Section 662-15(4) is, in his opinion, wrong, he'd be giving me legal advice which is against the rules. (See the transcript from 14:29:21 to 12:33:10.) I filed an objection, but after much consternation and obfuscation, discovered that Small Claims Court does not offer the same legal rights as regular District Court. I could not get a written justification for the judge's unexplained decision.
As of today, I've asked to withdraw the case without prejudice. I'm going to file in "real court." I've tried advocating to get the Hawaii Senate Judiciary Committee to explain what the §662-15(4) Exceptions mean if not the way I've interpreted it, and take a look at how the Attorneys General are spending our tax dollars. Nobody has explained yet why my interpretation of the law, the simple literary one, is wrong. Please write to the Senate Judiciary Committee and tell them you want the answer, too.
In the matter of Defamation. Case: 1DSC-21-0000748
Download PDFExhibit-1-Correspondence (pdf)
Download(Note: Apologies for ALL CAPS, but that is the way hearing minutes are displayed in the Hawaii Judicial Electronic Filing System, commonly referred to as "JEFS.")
*MINH
JMCOMEAU:EVILLEGAS HONOLULU-10B CD#45 (1432) PLTFF VANESSA OTT PRESENT VIA ZOOM WITH HUSBAND ERIK OTT. ATTY MICHAEL AZUMA PRESENT WITH DEFT CHRISTINE K. ASUNCION VIA ZOOM. ATTY AZUMA ENTERING HIS APPEARANCE FOR DEFT AND HAD ASKED TO BE ADDED FOR FUTURE CORRESPONDENCES. BY ORDER OF THE COURT, CASE SET FOR STATUS FOR MOTION RE: ATTY GENERAL BEING DISQUALIFIED ON 12/8/21 AT 1:30PM IN COURTROOM 10B. DEFENDANTS PRESENCE IS WAIVED ON 12/8/21. COURT NOTES THAT DEADLINE FOR PLTFF'S MOTION IS DUE 11/10/21 AND DEFT'S RESPONSE IS DUE BY 11/24/21. TONGAN INTERPRETER REQUESTED FOR WITNESS FEKETI HUAHULU.
Download 03 NOV 2021 Hearing ZIP Files and Extract TRM Files.
Click Here for Instructions.
Hearing-Nov-03-2021 (zip)
DownloadPlaintiff's Motion to Disqualify Hawaii Attorneys General
Download Plaintiff's Motion to Disqualify AGDeputy Attorney General Azuma Opposes Plaintiff's Motion
Download Deputy AG's Memo of OppositionPlaintiff's Memo on Statutes & Precedents Supporting Motion
Download Plaintiff's Memo(Note: Apologies for ALL CAPS, but that is the way hearing minutes are displayed in the Hawaii Judicial Electronic Filing System, commonly referred to as "JEFS.")
*MINH
HARTLEY:BAUTISTA(10B:CV:CD#50) 2:15 PLTFF VANESSA OTT CALLED; PRESENT VIA ZOOM. DEFT CHRISTINE K ASUNCION CALLED; DAG MICHAEL AZUMA PRESENT ON BEHALF OF DEFT WHOSE PRESENCE WAS WAIVED. COURT NOTED PARTIES' FILED PLEADINGS. COURT LIKEWISE NOTED THE PRESENCE OF ERIC OTT AND LUNDFORD PHILLIPS (WHO IS A MEMBER OF THE BAR BUT IS PRESENT NOT AS COUNSEL FOR PLTFF BUT AS A FRIEND). PARTIES MADE NO ADDITIONAL ARGUMENTS BEYOND THE PLEADINGS ON FILE. BY ORDER OFTHE COURT, PLTFF'S MOTION TO DISQUALIFY IS DENIED, PARTIES ARE REFERRED TO MEDIATION AND CASE IS CONTINUED FOR STATUS TO 1/7/22 AT 1:30PM - 10B. COURT RULED THAT THE ATTORNEY GENERAL HAS DISCRETION TO REPRESENT STATE EMPLOYEES. COURT NOTED THAT DEFT IS A STATE EMPLOYEE WHO WAS IN THE PERFORMANCE OF HER DUTIES DURING THE INCIDENT. COURT RE-REFERRED THE PARTIES TO MEDIATION WHICH WAS PARTICIPATED IN BY PARTIES (BECAUSE THE CASE WAS FILED AS SMALL CLAIMS TURBO) BUT WAS DISCONTINUED DUE TO THE FILING OF THE MOTION TO DISQUALIFY. COURT ALSO CLARIFIED AT DAG AZUMAS REQUEST THAT DEFT'S PRESENCE IS REQUIRED AND NOT WAIVED IN THE NEXT HEARING. COURT FINALLY NOTED THE PRESENCE OF TONGAN INTERPRETER SAIAFINAU WHO WAS REQUESTED FOR PLTFF's WITNESS FAKETI HUAHULU AND DECLARED THAT THE TONGAN INTERPRETER WILL AGAIN BE REQUESTED FOR NEXT HEARING.TONGAN INTERPRETER FOR WITNESS FAKETI HUAHULU MADE.
Opening Statements
Download Part 1 of Transcript PDFJudge's Ruling
Download Part 2 of Transcript PDFPlaintiff Objects to Denial and Requests Court Explanation
Still Waiting for a Response from the Court! 18 December 2021
It's a bit complicated, but a very interesting process. When you purchase an "audio" CD of your hearing, you get TRM files. This is a proprietary format owned and developed by For The Record, a company proud that proudly advertises to have been "challenging, harnessing, and studying the science of sound and video technology to advance justice" for almost three decades. I was impressed with the ease with which I was able to find my hearing in the huge list of TRM files as they are stamped with timecode. I assume TRM is an acronym for "The Record Media." Instructions for how to listen to TRM files are below
The hardest part was finding a CD player connected to a computer! Hawaii Judiciary is using obsolete technology. But, you don't have to worry about that. My preferred method of file transfer is in the cloud. My cloud is this web site. Start by downloading any of the hearing ZIP files posted on this page.
Short description of Hawaii Defamation Law from RM Warner Law. [Representation in a variety of complex legal matters, including Internet, corporate, regulatory, and technology legal issues.]
Libel, Slander, and Defamation Law: The Basics from FindLaw.com. [FindLaw Mission: To make the law accessible and understandable for everyone.]
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.]
Copyright © 2024 Vanessa Ott - All Rights Reserved.