With more than a year’s worth of Ka Loko-related lawsuits, Kaua‘i filings have shed light on a law aimed at preventing the litigiously inclined from abusing the right to file. Hawai‘i has a relatively young Strategic Lawsuit Against Public Participation
With more than a year’s worth of Ka Loko-related lawsuits, Kaua‘i filings have shed light on a law aimed at preventing the litigiously inclined from abusing the right to file.
Hawai‘i has a relatively young Strategic Lawsuit Against Public Participation law — it’s five years old — but the statute is gaining popularity in defamation suits, including one filed by Ka Loko Reservoir Dam owner James Pflueger.
Pflueger is suing Princeville resident Mimsey Bouret for comments she made during an April 5, 2006, Kaua‘i County Council meeting. The discussion at the meeting involved the March 14, 2006, Ka Loko dam breach, in which seven people died. (See meeting transcript page A6).
Pflueger’s attorneys state in court documents that Bouret said in the televised Kaua‘i County Council meeting that Ka Loko was the biggest mass murder in the state’s history, among other comments.
According to court documents, Bouret said to the council, “… I’m imploring you to please get involved, make a resolution, take this seriously. There have been murders committed. Murders.”
Attorneys on Bouret’s side drew more attention to the issue of free speech and a resident’s protection from redress, under both first amendment rights and SLAPP statutes.
Under the law, cited in court documents filed by Bouret’s defense, she could be protected from a defamatory suit, as testimony given before a governmental body during the course of a governmental proceeding is privileged and constitutionally protected.
In the motion to dismiss Pflueger’s claim, Bouret’s attorney states “it is irrelevant whether Plaintiff’s allegations are true. The purpose of the statute is to protect First Amendment right to free speech before a government body against retaliatory lawsuits.”
According to the anti-SLAPP statute, Hawai‘i residents enjoy the right to exercise free speech in a public forum. Whether that means without worrying about a defamation lawsuit from Pflueger remains to be seen.
Though Pflueger’s defamation suit against Bouret is now at the settlement table, other pending litigation surrounding the dam breach is expected to consume more than a year in Kaua‘i courts.
Other suits include a wrongful-death claim brought by the seven victims’ families and a property damage claim filed by entertainer Bette Midler and others.
Pflueger also has pending claims against irrigation company owner Tom Hitch, part-reservoir owner named as the Mary Lucas trust, the state, Kaua‘i County and former sugar plantation C. Brewer & Co.
According to the American Civil Liberties Union, the first time a SLAPP suit was challenged in a Hawai‘i court was in February 2004. ACLU attorneys had argued that when the president of Charley’s Taxi, Dale Evans, wrote to state officials to investigate reports of misconduct and possible illegal activities engaged in by TheCab, the company that holds a revocable permit for the concession at the airport, TheCab’s countersuit alleging defamation for sending a letter to state was nothing more than a SLAPP suit.
The ACLU maintains the statute is in place to ensure the “little guys’” right to free speech isn’t pervaded by bullying entities — such as developers who could scare off dissenting residents and therefore create a chilling effect.
Meeting transcript reveals details
Source: court document/transcript of April 5, 2006, County Council meeting:
• MS. BOURET: Thank you, council members and Council Chair, for allowing us this opportunity to speak today. It’s an emotional time. I’m amazed how well the victims of this have done in communicating their loss and their feelings. I hope I can do half as well. Four and a half years ago, when Mr. Pflueger n Pflueger, or he who must not be named, for fear of retaliation to your well being. So we’ll call him, “He who must not be named.” When he moved earth and nearly destroyed the Marvin families and their neighbors at Pilaa, I was there the second day. I saw the mud. I saw the boulders. Mr. Asing came down there. He saw it. He saw the devastation. To this day, that man has not apologized or made remuneration in any way to the victims from four and a half years ago. I came and spoke, which is something I don’t like to do. You don’t see me here often. I held my watch up and I said, “If you could hear this watch go tick, tick, tick, this is 60 minutes stuff, Guys. You got to get on the right side of this.” Now we have what might be the biggest mass murder in Hawaiian history. Has anyone ever killed eight people a seven and a half month old fetus? Bruce Fehring’s magnificent daughter, his exquisite grandson. Think for a moment if it was your family. Think for a moment that none of you have come there to see it with your own eyes, that you don’t know what road we’re talking about, that you haven’t smelled the death and felt it. I don’t live there. I represent three landowners who have had their lands changed forever. Forever. And they need help. It’s not even, you know, the monetary help to replant palms. It’s your help to, like, get involved, believe that there’s something really wrong going on in that community. Really wrong. And he’s getting away with it. You guys were elected to protect us. I know Shaylene, you’re a warrior. I’ve seen you in the DA’s office go after the bad guys. It’s time to put on the white hat and go after the guys with the black hats. There may be one, so grant immunity. Get a special proposal or, or, I’m think, forgetting the word right now that we that we want you to do a resolution. Thank you. A resolution, to get real. And Joanne, I always say, you and I come out on the opposite sides of issues, but I always respect you because you’re one of the brightest minds in this county. You’re sharp, you’re quick, and you’re right. But you went public with a statement saying that he doesn’t know what he’s doing, he’s a good guy, I’ve known him for years, he doesn’t understand the consequences of his actions. This is not a kid pushing another kid in the playground that broke his arm and, geez, he didn’t know he was so strong. This is a bully. He’s a Goliath, and he’s stampeding people and lives and your laws.
COUNCIL CHAIRMAN ASING: Madam.
MS. BOURET: I’m sorry.
COUNCIL CHAIRMAN ASING: I would appreciate if you not use names and make accusations. I mean
MS. BOURET: OK.
HEARINGS OFFICER: do your testimony.
MS. BOURET: OK
COUNCIL CHAIRMAN ASING: And I know it’s
MS. BOURET: It’s
COUNCIL CHAIRMAN ASING: it’s not an easy thing to do.
MS. BOURET: It’s not easy. And I’m sorry.
COUNCIL CHAIRMAN ASING: But I
MS. BOURET: I didn’t mean to.
COUNCIL CHAIRMAN ASING: I appreciate that you not
MS. BOURET: I didn’t mean to.
COUNCIL CHAIRMAN ASING: name names, please.
MS. BOURET: Thank you. I won’t.
COUNCIL CHAIRMAN ASING: Thank you.
MS. BOURET: So in summary, for those of you who have not had a chance to come out and see, or have had no had a chance to pick up the phone and say, geez, I’m sorry your families have been demolished, but is there anything we could do, but you’ve had time to make comments supporting the possible perpetrator of this disaster hurts. It just hurts. Because you are of our community. You’re not separate from us. You are our community. That’s why you’re there, to represent the community. This is a big community accident. There’s more accidents waiting to happen if the Wailapa Road ease — county easement n it’s a county easement across private property. If they don’t get real n if n if n if the county is still thinking we’re talking about the other Rock Quarry Road, which is miles away and isn’t affected, then it’s like what vacuum are we even talking in. So I’m imploring you to please get involved, make a resolution, take this seriously. There have been murders committed. Murders. Thank you.
