Who is taxedtodeath?
That was the question of the day Friday, as attorneys for county Elections Administrator Pat Nakamoto, former County Council Chairman Dominic Yagong, the county and the unknown individual faced off in Kona Circuit Court.
Nakamoto’s attorney, Ted Hong, has been pressing for the identity of taxedtodeath, a pseudonym for someone who previously commented on Hawaii Tribune-Herald articles online. Hong said the person, when commenting in the newspaper, had information that was the substance of a confidential county investigative report.
Nakamoto and former elections clerk Shyla Ayau sued for defamation after statements by Yagong and former County Clerk Jamae Kawauchi were quoted in a Jan. 12, 2012, article in Big Island newspapers naming four employees who had been fired for allegedly violating county policy. In the article, written by former Hawaii Tribune-Herald reporter Jason Armstrong, Kawauchi identifies the four who were fired.
The case went up to the Hawaii Supreme Court, which sent it back down for further proceedings for all defendants except Kawauchi, who was dismissed from the case. The circuit court must decide, because “whether Yagong’s allegedly defamatory statements were true involves a disputed question of material fact,” the Supreme Court order said.
If statements are true, there is no defamation, the court said in dismissing Kawauchi’s case. Higher courts rule only on the law; it’s up to the circuit court to rule on facts in a case.
Hong subpoenaed the newspaper to reveal the name, saying the name is important because Yagong said in a 2013 deposition an individual identifying him- or herself as taxedtodeath called Yagong and discussed the case. Yagong refused to identify the person, Hong said.
“To come out to one of the litigants and help with the defense — he’s no longer anonymous,” Hong said. “In order to prove the case we have to know who he was and where he got his information from.”
Judge Melvin H. Fujino on Friday denied Hong’s motion to force the newspaper to comply with his subpoena and also denied Hong’s motion for sanctions against taxedtodeath’s attorney, Steven Strauss, according to court minutes. Fujino did give Hong permission to ask the court if he could require Yagong to submit to another deposition.
“I don’t know where his case is going. Mr. Hong seems to file lots of documents. Some are virtually identical to ones he filed years ago,” Strauss said Monday. “They didn’t go anywhere then; they didn’t go anywhere now.”
Hong, though, says the motions are necessary as the discovery phase nears its end. Yagong is being sued in both his personal and professional capacity, so a private attorney and the county are defending him.
“The defendants Dominic Yagong and the County of Hawaii have been hiding the ball,” Hong said.
“I submit the county hasn’t been pursuing this in good faith.”
Deputy Corporation Counsel Lerisa Heroldt disagrees.
“The county takes all lawsuits seriously whether they seem to be frivolous or not,” Heroldt said.
Yagong and Kawauchi were investigating reports that county employees were hosting parties with alcohol at the county’s Elections Division warehouse. The county code forbids alcohol use on county property.
The two were also looking into reports that the warehouse manager, Glen Shikuma, was running a private sign-making business in the county’s leased warehouse building, which would also have been against the county code.
Investigators turned up evidence of empty, full and partially consumed alcohol containers, as well as sign-making equipment Shikuma said he was storing at the warehouse, but claimed he never used on county property. After union grievance hearings, Nakamoto received a 10-day suspension and was reinstated. Shikuma died of an aneurysm before completing the union arbitration process.
Once all the pretrial work is done, the case goes to another trial.