John Bear shamelessly seeks advice on whether to consider a libel suit.

There are no "short" answers...

The issue, here, is defamation, not libel. Libel is a category of defamation -- the written kind ("slander" being the spoken kind) -- and because that's the method used by the maker of the allegedly-harmful statement, one says that "libel laws" apply. But, really, it's "defamation." The question is, were you defamed? And, if so, the second question -- the really critical one that will determine if any judge will actually do anything about it -- is whether you can actually show that you were harmed because of it. And that second part is the one that will almost certainly put an end to the matter when all is said and done.

It's easy to intuit how harm could be done by this statement, but far more difficult to show that actual harm occurred and, more importantly, to what (financial) degree. And without an actual showing of harm, pursuit of any kind of defamation claim is probably just a huge waste of time... and that's almost always true, just generally.

In order to establish the libelous form of defamation, certain things must typically be true, to wit:

1) The allegedly harmful statement must be "published." As applies in libel law, "published" simply means conveying the allegedly-harmful statement to anyone other than the person who is the subject thereof -- though courts have been hesitant to strictly interpret private communications between two parties which subsequently stay just between said parties (as opposed to communications which subsequently appear in newspapers or on web sites) as "published" communications. In this case, however, I'd say the allegedly-harmful statement was clearly "published" as same is defined in most libel statutes.

2) The allegedly-harmful statement must be made as a clear and unambiguous statement of fact (not a mere opinion, mind you, but actual fact) even though said statement is actually provably untrue. The operative phrase, here, is "provably untrue." In a defamation case, it is usually the plaintiff who bears the burden of showing (proving) the allegedly-harmful statement to be false (and harmful... but that's covered in a subsequent item). And said allegedly-harmful statement cannot even remotely be considered an opinion. Statements -- even false ones -- which any reasonable person hearing same would generally consider to be merely the allegedly-harming person's "opinion" is generally not actionable in court. I'd say the maker of the allegedly-harmful statement made same in the form of facts, but you can rest assured that if dragged into court as a defendant in a libel case the maker will assert that he was merely expressing an opinion.

3) The person allegedly harmed by the statement must be clearly identifiable. In this case, the person about whom the allegedly-harmful statement was made is clearly identifiable.

4) The allegedly-harmed person must actually have been harmed in a not-insignificant and usually provable way. This is always a tough one. Generally, a statement is harmful if it seriously shames, ridicules, disgraces or injures a person's reputation or causes others to do so. Statements that are mildly embarrassing or merely confusing or inacurate will not meet the "harm" test. But courts have been hesitant to rule that "harm" occurred unless actual harm which can be objectively quantified can clearly be observed. Showing this would force you to engage in all manner of costly, time-consuming and probably-not-worth-it investigation and witness interviewing. You'd need to show that there actually are persons out there who either stopped doing business with you, or who were about to but decided not to, based solely on their having read the allegedly-harmful statement. Showing true harm -- and I mean real, honest-to-goodness harm -- would be difficult if not impossible in this case. It's easy to intuit that a given statement like the one made about you is or would be harmful, but before a judge will take money from the maker's pocket and put it into yours for his having done so, you really need to show actual harm. That's true of most any civil lawsuit, by the way. It's difficult to see that any real and quantifiable harm has been done, here... at least at this point. That could change, of course... but I doubt it will.

5) There must be someone "at fault" for the publication. This is where it gets tricky. Was the author of the statement at fault for merely sending it to its recipient, or was the recipient at fault for subsequently making the information publicly available -- or both? The whole notion of figuring out whom to sue -- and for precisely what -- in a case like this becomes a nightmare. Just figuring out that part of it can run-up thousands of dollars of attorney's (and/or his investigator's) fees. And the rigorousness of the "fault" standard really goes up -- skyrockets, in fact -- when the allegedly-harmed person is a "public figure." In other words, even if you could establish fault and begin to assign monetary damages based thereon were you what the law calls a "private person," the fact that you're not -- that you're actually a public figure in every legal sense -- makes it nearly impossible to show "fault" in the sense that drafters of most states' libel laws had in mind. A "public figure" is either a "celebrity," whose pervasive fame or notoriety has made his or her name a "household word;" or, someone who has voluntarily assumed a leading role in a particular public arena or controversy. There is no doubt that you qualify as a "public figure" pursuant to the latter. So, to some degree, the court is going to find that whatever the allegedly-harmful statements were, they were of the nature that anyone who "puts himself out there" as you have done should expect from time to time.

If, despite my analysis above, you, as the plaintiff, were still able to prove all of the above elements, the defendant would proffer one or more of the following defenses:

A) That you somehow consented to the public disclosure of the allegedly-harmful statement. This is another tricky area. If you do nothing to attempt to quash or at least mitigate the potentially-harmful effects of the statement, your silence can be construed as "consent." So that means that you must do something (which I'll get to in a moment) in the way of registering protest and officially requesting either that the statement be removed from public view or that, at the very least, you be permitted to mitigate its potentially-harmful effects by having your words of denial and correction made an inseparable part in perpetuity of the document in which the allegedly-harmful statement appears.

B) That the allegedly-harmful statement is, in fact, true (or at least cannot be proved false by the plaintiff). Truth is an absolute defense to both the libelous and the slanderous forms of defamation. One may say anything about anyone anywhere -- even if it's harmful -- as long as it's provably true or, in most states, as long as it cannot be proved false for whatever reason. And that's because the burden of proving that the statement is untrue usually (but not always) rests with the plaintiff.

C) That the allegedly-harmful statement was an opinion or was satire. This was touched-upon in item 2, above. If a statement cannot reasonably be interpreted by a reader to be one of express or implied fact, it cannot be libelous. However, merely prefacing a potentially-harmful statement with "in my opinion" (or other equivalents) does not get the maker of said statement off the hook. The acid test is whether the statement is capable of being proven true or false. Pure opinions, by their very nature, cannot be proven either true or false, ergo opinions are not actionable. The same goes for satire and parodies. The courts have found, generally, that any satire and parody that no reasonable person would read as a factual statement, or as anything other than a joke -- even if it's a bad one -- cannot be actionable as a defamation.

D) Though the maker of the statement might try to somehow, weirdly claim "privilege" in this case (he is a lawyer, after all), the whole "privilege" thing in defamation law usually applies as a defense to the media which transmitted the allegedly-harmful statement to the public, not so much the original maker. It gets a little complicated, and I'm running close to my 10,000 character posting limit. Let it suffice to say that "privilege" -- at least as framers of defemation statutes had in mind -- isn't really an issue (or a potential defense) here.

To avoid the "consent" problem, as set forth in item "A)" above, and also so that you might actually have a chance at doing something to truly mitigate the potential harm, you need to contact whomever is in charge of seeing to it that the allegedly-harmful statement will be publicly available and register a formal protest. Demand the world, but expect a village. Tell him/her that it's provably untrue and libelous; that you want it removed immediately else you'll not only sue the maker of the statement but also the party making it publicly available; and that if the statement remains publicly available then you demand that your factual rebuttal and correction of the untruths in the maker's statement be made an inseparable part thereof which could not be missed by any reader. Then just settle on that last one.

Personally, I wouldn't worry about it for two seconds. I'd definitely do what I wrote in the previous paragraph, but then after that I'd take the yawning, it-doesn't-bother-me-a-bit approach and merely either ignore it or, calmly put the maker's words (and my proof that they're untrue) right on my own web site for all the world to see -- an act that will, effectively, obliterate all future possible claims of libel and harm by you, but that will also show that you're just letting it roll off your back like water off a duck.

 

There are no "short" answers... [ADDENDUM]

Regareding the "at fault" situation, in item 5 of my previous posting: No court would likely hold any government agency "at fault" in a libel case for merely making publicly available a communication between an attorney (or anyone else, for that matter) and a public employee -- especially if the law required that all such communications be considered "public."

Furthermore, any newspaper or other media outlet which subsequently publishes said communication -- as long as it was factual and the reporter did his/her proper attributions and did all the other things reporters are supposed to do -- could not possibly be "at fault" for making it even more public.

Finally, your having "published" it here effectively sucks the wind right out of the sails of most any claim that you were harmed by the communication's public disclosure. Questions like the one you asked which started this thread are best asked privately.

But then again, you knew that, didn't you? By merely asking the question here as you have done, you have effectively publicly denied the allegations. But even more cunningly, you've done so without addressing any of the allegation's specifics... always the best way.

You should teach spin control to political candidates!

One thing to investigate is whether either the privacy laws (if any) of the state in which the communication was received by the public employee, or the public disclosure laws therein, have anything in them which might permit you to, through some sort of due process, obtain an administrative or even a judicial ruling that the statment made is so provably inaccurate and potentially harmful that it should not be part of the public record after all and should be somehow sealed. You'll almost certainly need an attorney for that.

And, speaking of that, I forgot an important disclaimer: Whether or not I'm an attorney notwithstanding, nothing I have written in this thread should be construed as "legal advice" but, rather, merely a statement of interpreted facts, lay analysis and pure opinion which are intended, wholly and/or in part, merely to aid you in your discussions of the matter with appropriate legal counsel when you finally seek it. Moreover, I am hereby officially advising you to seek the counsel of a qualified attorney in your state before taking any action on this matter.

 

Re: There are no "short" answers...

I'm not a lawyer, and don't play one on television, but aren't certain statements, at common law, considered slanderous per se, and in such cases, aren't they presumed to be harmful to one's reputation regardless of whether or not "actual" damage has occurred?

The statement that one has been imprisoned for a crime, as far as I understand it, falls into slander per se, and thus, damage is assumed -- there is no burden of proving actual damages.

Of course I could be wrong. (And probably am!)

 

Re: Re: There are no "short" answers...

Nah...I think you are correct Quinn..

 

Re: Re: Re: There are no "short" answers...

I suppose there's a first time for everything. but I still bet I'm wrong.

In this case, as pointed out, it's not spoken, but written defamation, and therefore, I have no clue whether the same per se of slander per se comes into effect regarding the false statement about being in prison for fraud. Baumer & Poindexter seem to point towards libelous statements as assuming to more likely reflect deliberation on the part of the defendant, and "as such, a defendant who libels another is liable for damages without the plaintiff having to prove any specific injury."

Unfortunately, B&P don't cite specific cases except employee-employer and newspaper-law-enforcement ... so it's hard to grok the subtleties in this particular circumstance.

All of that said -- as hard as it can be to stomach when sleezebags say nasty things about us -- laughter is the best medicine. I know from personal experience that laughter isn't the tastiest pill to swallow -- but vita brevis ars longa -- and in the big picture, the courts should remain for the most heinous of malfarctions of good-taste. IMO. Your mileage may vary. Offer not available in Quebec.

 

Thank you Mr. DesElms. Tremendously helpful; far more than I dared hope for.
John Bear

 

Re: Re: There are no "short" answers...

Okay... I'll repeat for the folks in the back row who maybe couldn't hear me the first time around: The issue is defamation. Libel is the written form of defamation; slander is the spoken form of defamation. This particular case is about written words and is, therefore, about the libelous (not the slanderous) form of defamation.

Not slander... per se.

Libel... per se.

And if you want to go and spend a bunch of money retaining counsel (for which you'll pay dearly and up-front, I might add) and filing a defamation suit (remember... it'll be a libel suit, not a slander suit) based on what you call "assumed damages," and without being able to show any actual consequential damages (be they direct or indirect), then by all means be my guest. Just remember that there is a vast difference between the theory of it ("at common law," as you call it) and its practical actuality. Absent the showing of real damages that can be tallied-up and shown on an adding machine tape, your award, if any, won't cover your filing fee.

But, hey... I could be wrong. (I'm not, of course... but hey.)

 

Re: Re: Re: Re: There are no "short" answers...

Not wrong Quinn, just premature. You never get to the issue. The communication is absolutely privileged. Here is an article describing the law in California. If Hawaii doesn't have a similar statute it has applicable common law. When you get down to the discussion of section 47(b)(3) and (4) you have this exact situation. There is not, as has been stated elsewhere here, anything "weird" about this claim.

Plaintiff loses on first demurrer. The judge would grant leave to amend, but this is for the judge's benefit, not the plaintiff's. He wants to make it look like he gave the plaintiff every chance. (I.e., he is making sure the coffin is sealed airtight before he kicks it into the hole.) Plaintiff loses on second demurrer. Judgment for the defendant on the merits.

Next conversation is between defendant and his lawyer regarding merits of malicious prosecution action.

 

I would report him to the state bar and to the agency as the others have recommended.

Here is a good link to most public records in the US:

www.searchsystems.net

Here, one can find a list of each state's licensed attorneys, as while as, links to the state's respective bar association.

If the gentleman is not listed as an attorney, I would still report him as practicing law without a license.

Good luck,

 

Categorization without sufficient data

And you know this how, again? There is nowhere near enough information in Mr. Bear's original post -- or in any of his subsequent posts -- in this thread for any of us to know if the communication was privileged.

When Mr. Bear receives your check so that his claim can be funded, I'm sure his attorney will be more than happy to explore the efficacy of your legal analysis...

...just as long as it's at your expense.

 

Mugshot... er... well... sort of.

Just for grins and FYI...

Anyone wanting to put a face with the name Richard K. Minatoya can find a photo of him about three-quarters of the way down the page at:

http://www.kiuc.coop/candidatesseptember_final.htm

 

Re: Categorization without sufficient data

Not enough for you perhaps, but for those of us with an understanding of the law and its practical--rather than theoretical--application, quite sufficient.

 

Re: Mugshot... er... well... sort of.

So is it your contention that Mr. Minatoya has committed some sort of criminal act?

 

What the...

The very inherent theme of every single word I have written in this thread is the practical (and not the theoretical) application of law. That you have somehow missed that says more about you and the color of the filters through which your incoming data passes than it does about me.

No. Why would what I posted make you ask a thing like that?

 

Sir Osis of Liver,

It is increasingly seldom that someone bothers to post (apparently) informative and interesting information, rather than just prattle. Please do not repay their generosity with nonsense like your previous post. Unless you are new to English, you should be able to figure out that "DesElms" wasn't declaring "that Mr. Minatoya has committed some sort of criminal act". Presumably you know this, and posted your mock question in an effort to make some sort of point. Well you have, although I don't think it was the one you wanted to make.

Were I "DesElms", I certainly wouldn't waste my time with a reply. Better yet, if "DesElms" really is a lawyer, he ought to sue you for "slander" <g>.

 

Re: What the...

Bad news, DesElms. Real life problems are not solved by writing law school exam answers. Try again in 20 years.

 

Ha! This is interesting. Thanks for jumping to my defense RKanarek. I've several times found myself feeling rather alone around here and it's nice to see that maybe if I were lying wounded in a ditch not everyone passing by would spit on me. Fortunately, a little spit never hurt anyone... and it washes right off. Not to worry, though. I'm no kid. I've encountered the likes of "Sir Osis" more times in my life than I can count. And sooner or later (usually sooner than later) they fall on their own swords and needn't usually even be engaged. I'm not in the least bit worried.

Sir Osis, by the way, was, I think, suggesting that my "Subject" line, "Mugshot... er... well... sort of" in my earlier post was to suggest that attorney Minatoya was a criminal. It's not an illogical conclusion for him to have come. But it was a joke... which if he had actually answered my question, "Why would what I posted make you ask a thing like that," he would have learned as part of my response to whatever he answered thereto, that I was kidding and what I meant by it. But, like most cheap-shot artists more interested in form than content, Sir Osis missed his chance to actually engage in meaningful dialogue by focusing his attention on being clever... as illustrated most effectively in his subsequent post, above.

Oh, well... such is life. There will always be Sir Osis. That's why we have liver transplants.

 

Sir Osis is obviously a troll and you didn't need any help. Don't know why you feel spit upon.

 

HI state bar record

See HI bar profile below (from the bar public website):

I wonder if Mr. Minatoya would apologize profusely when notified of the horrible error on his part. Something tells me you have reason to believe there is a lack of good faith on his part, however!

I would consider researching the procedure for filing an ethics complaint with the Hawaii state bar. I respectfully disagree with Mr. Boyd's opinion that an ethics complaint is unlikely to "get far," because (1) this is not a 'he said, she said' situation--the letter speaks for itself, and the letter is on its face is so outrageous that it may pop the complaint into the minority of such complaints that gets thoroughly investigated; (2) anyone who would write such a letter is so sloppy and/or so ethically challenged that he is likely already to have a trail of (at least) close calls with the ethics committee, and your complaint may be delivered to an ethics committee that is just waiting for an opportunity to do something about a member whom they already know is a bad apple; (3) anyone who would write such a letter will continue to do this kind of harm to innocent people in the future, so any action you take will help "the next guy", and that's something each of us can do when harmed by a bad person; and (4) as opposed to a lawsuit, the time it will take you to write the appropriate department of the bar is minimal, and your involvement will likely be limited to giving a further statement if they decide to investigate.

I do caution you to be very careful to make sure that every statement you make in your letter is factual and conservative. In a case such as this there is no reason to engage in any persuasive rhetoric at all. You have a privilege in lodging the complaint, but err on the side of the caution to avoid any possiblity of being sued yourself for libel. Furthermore, I do urge you to at least give Mr. Minatoya the opportunity to deny he was the author of the letter, and if he is indeed the author, to contact the recipient(s) of the letters to correct his errors. He would be nuts not to take advantage of whatever opportunity you afford him to climb out of the whole he has dug for himself, and if he refuses the opportunity then he is doubly worthy of whatever discipline may he may receive.

-WR


Member Number: 5840
Status : Active
Title :
First Name: Richard
Middle Name: K.
Last Name : Minatoya
Contact Name : Richard Minatoya
Gender: M
Employer : Law Off. of Richard K. Minatoya, LLLC
Business Address Line 1 :
Business Address Line 2 : 4393 Kukui Grove St., Ste. 104
Business City: Lihue
Business State: HI
Business Zip: 96766
Business Country :
Business County : Kauai
Business Phone No. : 808-241-7300
Date of Last Update : 5/6/2004
Last Updated: Tue Feb 11, 2003

 

Mr. Minatoya

A quick google search leads me to believe I was on the right track in suspecting that any person who would write such a letter would have previously drawn attention to himself:

The following is apparently from an editorial in a Hawaii online newspaper:

"In addition to a pending Council investigation of the actions of the Corp Counsel and the Planning Department over SMA waivers and approvals, Deputy Corp Counsel Richard Minatoya is now the subject of a written complaint. A local citizen describes a finger-pointing confrontation and threat of legal action by Minatoya (alleged to have said "I'll come after you with everything I've got") in response to the testimony of that citizen.

"Minatoya has in the past used the word "bitch" to loudly, publicly and angrily disrespect a councilmember's staff assistant in the Council chambers; he has also had unpleasant confrontations with other staff assistants who prefer not to be named.

"He was recently overruled by Takayesu in his decision to send an e-mail message telling a developer that "they are allowed to proceed" with their project - an action that is not part of his duties and for which he has no authority.

"Minatoya is assigned as legal advisor or first alternate to all island planning commissions, the planning department and the Council Planning Committee; the Department and Board of Water Supply: the Land Use Committee and commission; the department of Management, Board of Ethics and the Mayor's office. His duties also include code enforcement, land actions involving county property, and condemnation.

"When a citizen group met with Mayor Apana recently and mentioned their concerns over some of Minatoya's actions, the mayor described Minatoya as "a long-time, personal friend." That kind of personal relationship isn't wrong, but it does lend credence to the perception of several councilmembers that Corp Counsel's office tends to function as the Mayor's attorneys.

"According to the county charter, Minatoya serves "at the pleasure of the Corporation Counsel." As a county employee, his true employers are the residents of the county. As his supervisor, Takayesu should ensure that Minatoya treats the citizens of Maui County with the respect and courtesy that any employee is expected to show to their employer. As his "long-time personal friend," perhaps the mayor should remind him of his proper role as a public servant.


http://www.mauisfreepress.com/archives/archives2001_2002/editorials/2002/editormarapr02.html