qualified privilege in Hawaii

2014Even if a statement is defamatory, the author of the statement is protected by a qualified privilege when he or she "reasonably acts in the discharge of some public or private duty, legal, moral, or social, and where the publication concerns subject matter in which the author has an interest and the recipients of the publication a corresponding interest or duty." Russell v. American Guild of Variety Artists, 53 Haw. 456, 460, 497 P.2da 40, 44 (1972).

2010Even if a statement is defamatory, the author of the statement is protected by a qualified privilege when he or she "reasonably acts in the discharge of some public or private duty, legal, moral, or social, and where the publication concerns subject matter in which the author has an interest and the recipients of the publication a corresponding interest or duty." Russell v. American Guild of Variety Artists, 53 Haw. 456, 460 , 497 P.2d 40, 44 (1972).

2013The remaining allegedly defamatory statements fail because they were privileged in the context of the intra- corporate investigation.2/ "A qualified privilege arises (1) when the author of a defamatory statement reasonably acts in the discharge of some public or private duty, legal, moral, or social and (2) where the publication concerns a subject matter in which the author and the recipients of the publication have a correlative interest or duty." Kainz v. Lussier, 4 Haw. App. 400, 404, 667 P.2d 797, 801 (1983) (citing Aku v. Lewis, 52 Haw. 366, 477 P.2d 162 (1970)).

2013The remaining allegedly defamatory statements fail because they were privileged in the context of the intra- corporate investigation.2/ "A qualified privilege arises (1) when the author of a defamatory statement reasonably acts in the discharge of some public or private duty, legal, moral, or social and (2) where the publication concerns a subject matter in which the author and the recipients of the publication have a correlative interest or duty." Kainz v. Lussier, 4 Haw. App. 400, 404, 667 P.2d 797, 801 (1983) (citing Aku v. Lewis, 52 Haw. 366, 477 P.2d 162 (1970)).

2014A qualified privilege "is conditional and is lost if it is abused." Id. at 564, 670 P.2d at 833. ‘The qualified privilegeis lost if the holder abuses the privilege by "(1) excessive publication, (2) use of the occasion for an improper purpose, or (3) lack of belief or grounds for belief in the truth of what is said." Kainz v. Lussier, 4 Haw. App. 400, 405, 667 P.2d 797, 802 (1983).

2014A qualified privilege "is conditional and is lost if it is abused." Id. at 564, 670 P.2d at 833. ‘The qualified privilegeis lost if the holder abuses the privilege by "(1) excessive publication, (2) use of the occasion for an improper purpose, or (3) lack of belief or grounds for belief in the truth of what is said." Kainz v. Lussier, 4 Haw. App. 400, 405, 667 P.2d 797, 802 (1983).

2007According to the “reasonable person” test, “in the instance where malice is alleged to extinguish a qualified privilege, defendant is required to act as a reasonable [person] under the circumstances, with due regard to the strength of his [or her] belief, the grounds that he [or she] has to support it, and the importance of conveying the information.” Towse, 64 Haw. at 632-33 , 647 P.2d at 703 (quoting Russell, 53 Haw. at 463 n. 4, 497 P.2d at 45 n. 4 (quoting Prosser, The Law of Torts, 795-96 (4th ed.1971))) (quotation signals omitted).

2007According to the “reasonable person” test, “in the instance where malice is alleged to extinguish a qualified privilege, defendant is required to act as a reasonable [person] under the circumstances, with due regard to the strength of his [or her] belief, the grounds that he [or she] has to support it, and the importance of conveying the information.” Towse, 64 Haw. at 632-33 , 647 P.2d at 703 (quoting Russell, 53 Haw. at 463 n. 4, 497 P.2d at 45 n. 4 (quoting Prosser, The Law of Torts, 795-96 (4th ed.1971))) (quotation signals omitted).

2014Calleon v. Miyagi, 76 Hawai‘i 310, 319, 876 P.2d 1278, 1287 (1994).

2004However, a qualified privilege is conditional and is lost by "[(1)] excessive publication, [(2)] use of the occasion for an improper purpose, or [(3)] lack of belief or grounds for belief in the truth of what is said." Calleon v. Miyagi, 76 Hawai`i 310, 319, 876 P.2d 1278, 1287 (1994); see Kainz v. Lussier, 4 Haw.

2013Keomalu v. Hickam Fed. Credit Union, No. 27868, 2010 WL 466007, at *9 (Haw. Ct. App. Feb. 2, 2010). "([W]here malice is alleged to extinguish a qualified privilege, defendant is required to act as a reasonable man under the circumstances, with due regard to the strength of his belief, the grounds that he has to support 3/ Satisfaction of the publication element requires that a plaintiff establish that the false and defamatory statement was "communicated to some third party other than the person defamed." Gonsalves v. Nissan Motor Corp. in Hawai‘i, 100 Hawai‘i 149, 171, 58 P.3d 1196, 1218 (2002

2013Keomalu v. Hickam Fed. Credit Union, No. 27868, 2010 WL 466007, at *9 (Haw. Ct. App. Feb. 2, 2010). "([W]here malice is alleged to extinguish a qualified privilege, defendant is required to act as a reasonable man under the circumstances, with due regard to the strength of his belief, the grounds that he has to support 3/ Satisfaction of the publication element requires that a plaintiff establish that the false and defamatory statement was "communicated to some third party other than the person defamed." Gonsalves v. Nissan Motor Corp. in Hawai‘i, 100 Hawai‘i 149, 171, 58 P.3d 1196, 1218 (2002

2026A qualified privilege "arises when the author of the defamatory statement reasonably acts in the discharge of some public or private duty, legal, moral, or social, and where the publication concerns subject matter in which the author has an interest and the recipients of the publication a corresponding interest or duty." Vlasaty v. Pacific Club, 4 Haw.

2026A qualified privilege "arises when the author of the defamatory statement reasonably acts in the discharge of some public or private duty, legal, moral, or social, and where the publication concerns subject matter in which the author has an interest and the recipients of the publication a corresponding interest or duty." Vlasaty v. Pacific Club, 4 Haw.

2016See Morais v. Yee, 162 Vt. 366 , 648 A.2d 405, 410 (1994) (holding that where the Vermont Legislature enacted a statute similar to HRS § 291C-26, which established a statutory duty and liability for a breach of that duty for drivers of authorized emergency vehicles, the judicially created doctrine of qualified immunity did not apply).

2016See Morais v. Yee, 162 Vt. 366 , 648 A.2d 405, 410 (1994) (holding that where the Vermont Legislature enacted a statute similar to HRS § 291C-26, which established a statutory duty and liability for a breach of that duty for drivers of authorized emergency vehicles, the judicially created doctrine of qualified immunity did not apply).

2013Medical discretion is simply "not the sort of individual judgment sought to be protected by the qualified immunity bestowed upon public officials." Sparks, 701 So.2d at 1118 (McRae, J., dissenting) (citation omitted).

2013Medical discretion is simply “not the sort of individual judgment sought to be protected by the qualified immunity bestowed upon public officials.” Sparks, 701 So.2d at 1118 (McRae, J., dissenting) (citation omitted).

2013Brown v. Thompson, 91 Hawai'i 1, 14 , 979 P.2d 586, 599 (1999) (quoting Pele Defense Fund v. Paty, 73 Haw. 578, 595 , 837 P.2d 1247, 1259 (1992), cert. denied, 507 U.S. 918 , 113 S.Ct. 1277 , 122 L.Ed.2d 671 (1993)).

2013Brown v. Thompson, 91 Hawai'i 1, 14 , 979 P.2d 586, 599 (1999) (quoting Pele Defense Fund v. Paty, 73 Haw. 578, 595 , 837 P.2d 1247, 1259 (1992), cert. denied, 507 U.S. 918 , 113 S.Ct. 1277 , 122 L.Ed.2d 671 (1993)).

2013Fostering a lower standard of medical care among prison physicians "is clearly not necessary, let alone effective, in promoting a rational prison objective." Ross, 920 P.2d at 1176 (Stewart, C.d., dissenting) (citations omitted).

2013Fostering a lower standard of medical care among prison physicians “is clearly not necessary, let alone effective, in promoting a rational prison objective.” Ross, 920 P.2d at 1176 (Stewart, C.J., dissenting) (citations omitted).

2004Guild of Variety Artists, 53 Haw. 456, 460 , 497 P.2d 40, 44 (1972); see Lauer v. Y.M.C.A, 57 Haw. 390, 396 , 557 P.2d 1334, 1338 (1976) (explaining that a qualified privilege "arises when the author of the defamatory statement reasonably acts in discharge of some public or private duty, legal, moral, or social, and the recipients of the publication [have] a corresponding interest or duty").

2004Guild of Variety Artists, 53 Haw. 456, 460 , 497 P.2d 40, 44 (1972); see Lauer v. Y.M.C.A, 57 Haw. 390, 396 , 557 P.2d 1334, 1338 (1976) (explaining that a qualified privilege "arises when the author of the defamatory statement reasonably acts in discharge of some public or private duty, legal, moral, or social, and the recipients of the publication [have] a corresponding interest or duty").

2018However, an official's subjective mental state is irrelevant to the qualified immunity inquiry: rather, a court must evaluate the "objective legal reasonableness" of the official's conduct "in light of the legal rules that were 'clearly established' at the time[.]" Anderson , 483 U.S. at 639 , 107 S.Ct. 3034 .

2018However, an official's subjective mental state is irrelevant to the qualified immunity inquiry: rather, a court must evaluate the "objective legal reasonableness" of the official's conduct "in light of the legal rules that were 'clearly established' at the time[.]" Anderson , 483 U.S. at 639 , 107 S.Ct. 3034 .

2013Brown v. Thompson, 91 Hawai'i 1, 14 , 979 P.2d 586, 599 (1999) (quoting Pele Defense Fund v. Paty, 73 Haw. 578, 595 , 837 P.2d 1247, 1259 (1992), cert. denied, 507 U.S. 918 , 113 S.Ct. 1277 , 122 L.Ed.2d 671 (1993)).

2013Brown v. Thompson, 91 Hawai'i 1, 14 , 979 P.2d 586, 599 (1999) (quoting Pele Defense Fund v. Paty, 73 Haw. 578, 595 , 837 P.2d 1247, 1259 (1992), cert. denied, 507 U.S. 918 , 113 S.Ct. 1277 , 122 L.Ed.2d 671 (1993)).

2025“A cynic might say that with qualified immunity, government agents are at liberty to violate your constitutional rights as long as they do so in a novel way.” Green, 734 F. Supp. 3d at 540; Malley v. Briggs, 475 U.S. 335, 341 (1986) (“As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”); Kisela v. Hughes, 584 U.S. 100, 121 (2018) (Sotomayor, J., dissenting) (“[The Court’s] one-sided approach to qualified immunity . . . tells the public that palpably unreasonable conduct will go unpunished.”).

1999The qualified immunity standard “gives ample room for mistaken judgments” by protecting “all but the plainly incompetent or those who knowingly violate the law.” Malley [v. Briggs ], 475 U.S. [335], 343 [ 106 S.Ct. 1092 , 89 L.Ed.2d 271 ] [ (1986) ].

2025“A cynic might say that with qualified immunity, government agents are at liberty to violate your constitutional rights as long as they do so in a novel way.” Green, 734 F. Supp. 3d at 540; Malley v. Briggs, 475 U.S. 335, 341 (1986) (“As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”); Kisela v. Hughes, 584 U.S. 100, 121 (2018) (Sotomayor, J., dissenting) (“[The Court’s] one-sided approach to qualified immunity . . . tells the public that palpably unreasonable conduct will go unpunished.”).

2025“A cynic might say that with qualified immunity, government agents are at liberty to violate your constitutional rights as long as they do so in a novel way.” Green, 734 F. Supp. 3d at 540; Malley v. Briggs, 475 U.S. 335, 341 (1986) (“As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”); Kisela v. Hughes, 584 U.S. 100, 121 (2018) (Sotomayor, J., dissenting) (“[The Court’s] one-sided approach to qualified immunity . . . tells the public that palpably unreasonable conduct will go unpunished.”).

2015With the exception of defamation cases, the term "malice," when used in the context of this qualified privilege, NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER is "defined in its ordinary and usual sense” to mean "'the intent, without justification or excuse, to commit a wrongful act,' ‘reckless disregard of the law or of a person's legal rights,' and 'ill will; wickedness of heart.'" See Awakuni v. Awana, 115 Hawai‘i 126, 141, 165 P.3d 1027, 1042 (2007) (brackets omitted) (quoting Black's Law Dictionary 977 (8th ed. 2004)) (holding that the "reasonable person" test for det

2013See Winfrey v. GGP Ala Moana, No. SCWC-30589, 2013 WL 3776190, at *8 (Haw. July 18, 2013) (when analyzing a motion for summary judgment, the court "is permitted to draw only those inferences of which the evidence is reasonably susceptible and it may not resort to speculation"); Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) ("{A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (brackets in original) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2nd Cir. 1995))); Brothers v. Gen.

2013See Winfrey v. GGP Ala Moana, No. SCWC-30589, 2013 WL 3776190, at *8 (Haw. July 18, 2013) (when analyzing a motion for summary judgment, the court "is permitted to draw only those inferences of which the evidence is reasonably susceptible and it may not resort to speculation"); Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) ("{A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (brackets in original) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2nd Cir. 1995))); Brothers v. Gen.

2013Keomalu v. Hickam Fed. Credit Union, No. 27868, 2010 WL 466007, at *9 (Haw. Ct. App. Feb. 2, 2010). "([W]here malice is alleged to extinguish a qualified privilege, defendant is required to act as a reasonable man under the circumstances, with due regard to the strength of his belief, the grounds that he has to support 3/ Satisfaction of the publication element requires that a plaintiff establish that the false and defamatory statement was "communicated to some third party other than the person defamed." Gonsalves v. Nissan Motor Corp. in Hawai‘i, 100 Hawai‘i 149, 171, 58 P.3d 1196, 1218 (2002

2013Keomalu v. Hickam Fed. Credit Union, No. 27868, 2010 WL 466007, at *9 (Haw. Ct. App. Feb. 2, 2010). "([W]here malice is alleged to extinguish a qualified privilege, defendant is required to act as a reasonable man under the circumstances, with due regard to the strength of his belief, the grounds that he has to support 3/ Satisfaction of the publication element requires that a plaintiff establish that the false and defamatory statement was "communicated to some third party other than the person defamed." Gonsalves v. Nissan Motor Corp. in Hawai‘i, 100 Hawai‘i 149, 171, 58 P.3d 1196, 1218 (2002

2013See Winfrey v. GGP Ala Moana, No. SCWC-30589, 2013 WL 3776190, at *8 (Haw. July 18, 2013) (when analyzing a motion for summary judgment, the court "is permitted to draw only those inferences of which the evidence is reasonably susceptible and it may not resort to speculation"); Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) ("{A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." (brackets in original) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2nd Cir. 1995))); Brothers v. Gen.

2008Qualified immunity is `an entitlement not to stand trial or face the other burdens of litigation.'" Id. (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

2007Id. at 380 (citations omitted) (emphases added); see Fraidin v. Weitzman, 93 Md.App. 168 , 611 A.2d 1046, 1080 (1992) (stating that, “[t]o remove the qualified privilege, the attorney must possess a desire to harm which is independent of the desire to protect his client.