Honolulu prosecutor’s unlawful use of public funds challenged

Claiming a victory for voter fairness on election ballot measures, the American Civil Liberties Union of Hawai‘i announced recently the Hawai‘i Supreme Court ruled that Honolulu Prosecutor Peter Carlisle acted unlawfully when he used public funds and resources to advocate for a proposed constitutional amendment in a general election in 2002.

The ACLU brought the case on behalf of the late Robert Rees, a journalist and political commentator concerning the Prosecutor’s use of public funds and resources to campaign for the passage of Ballot Question 3 in the November 2002 general election.

Ballot Question 3 concerned information charging a mechanism that grants prosecutors expanded power to charge individuals without first having to present evidence to a grand jury or before a judge in a preliminary hearing showing that there is a sufficient legal basis for the charges.

“The Court made very clear that the law does not authorize the Prosecutor to use taxpayer dollars to fund one side of public debate,” said Lois K. Perrin, ACLU legal director and one of the attorneys for the plaintiffs. “The decision draws the appropriate line between a public official speaking out on an issue, which is constitutionally protected, and the use of public funds to promote that position, which is not allowed.”

In a unanimous 29-page opinion, the Court said that the Prosecutor’s “conduct went far beyond providing information to the public on how the criminal justice system can be improved; he became a partisan advocate leading a battle campaign using public funds and other resources to tell voters how to vote.”

Earle A. Partington, cooperating counsel in the case, stated, “We are very pleased with the ruling. Elected officials cannot abuse their positions by using public funds and resources to promote constitutional amendments. This gives the government an unfair advantage.”

Perrin added “This is a victory for Mr. Rees’ widow, Keene Rees, and for every taxpayer in the state of Hawai‘i who opposed the passage of Question 3.

Election questions will now, without question, be left to the voters to decide as they should be.”

Ballot Question 3 came up in an earlier ACLU legal win, Watland v. Lingle, which challenged the process in which Ballot Question 3 was first passed by the legislature.

That lawsuit, on behalf of 46 registered voters, challenged the procedures used to place Question 3 on the 2002 general election ballot.

The ACLU successfully argued that the State’s failure to follow constitutionally prescribed procedures in preparing and displaying voter education materials compromised a fair election.

The information charging amendment was ultimately passed in the November 2004 general election.

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