Posted on: Thursday, December 5, 2002
COUNTERPOINT
Hawai'i's lawless legal circles
By Robert M. Rees
Moderator of 'Olelo Television's "Counterpoint" and Hawai'i Public Radio's "Talk of the Islands"
In a recent lunchtime talk to the World Future Society, Chief Justice Ronald Moon of the state Supreme Court proffered that the essence of civic virtue is respect for the law.
If so, then the city Prosecutor's Office and the state Attorney General's Office might be lacking in that particular virtue. Both offices recently skirted around statutory and constitutional law so they might have their way on Ballot Question No. 3. This was the now-ratified amendment to our Bill of Rights that alters due process to make it dangerously easy for prosecutors to determine nearly on their own if there is probable cause to charge someone with a felony.
City Prosecutor Peter Carlisle, in a disconcerting interview with James Gonser of The Advertiser on Oct. 10, acknowledged that his office was spending taxpayer money to advocate on behalf of the ballot question. He claimed to have gotten approval from the state Ethics Commission.
The Ethics Commission promptly denied this assertion, and responded, "Mr. Carlisle was not given a 'green light' from our office. ... Mr. Carlisle was told that he should contact the attorney general."
Had Carlisle gone to the AG's Office, he would have gotten the same answer that the state Public Defender's Office got when it asked if it could use public funds to campaign against the amendment. Replied First Deputy Attorney General Thomas Keller on Oct. 24, "You or your staff may not use state time or resources to advocate for or against Ballot Question No. 3."
Reasoned Keller, "Courts are not likely to conclude that a public agency's use of public time and resources to advocate a particular election outcome serves a public purpose."
Two days later, Keller made it clear that his six-page opinion applied also to county agencies such as the city Prosecutor's Office.
Even while the AG's Office was opining — and specifically citing language such as "vote for" as forbidden advocacy by a public agency using public funds — the city Prosecutor's Office was running a "Vote Yes on Constitutional Amendment Question No. 3" section on its taxpayer-funded Web site.
Carlisle also had his deputies hit the streets for sign-waving during business hours, and even produced "Vote Yes" brochures that were distributed to subpoenaed witnesses.
There should have been a public outcry about this. There would have been, for example, had the Department of Education used public funds to fight Amendment Question No. 2, the issuing of special purpose tax-free revenue bonds for private schools.
On Oct. 30, this writer faxed Deputy AG Keller to inquire as to whether his office was investigating. So far there has been no response.
The AG's Office went on to show even more disrespect for the law by defending unconstitutional behavior associated with the passage of Ballot Question No. 3. In fact, the AG's Office tried to dismiss the Constitution as an inconvenient technicality.
Just prior to the Nov. 5 election, in response to an ACLU suit, the AG's Office blandly stipulated to the Supreme Court that Hawai'i had not followed the constitutionally mandated procedures for ratification of an amendment.
Not to worry, argued the AG's Office. Even if a significant number of voters had already cast absentee ballots, the state could provide in the remaining four days what the Constitution requires be done over four weeks: full exposure of proposed amendments.
The Supreme Court declined to stop the election, but left the door open for a challenge to the results. Brent White of the ACLU, with this writer as one of 40 plaintiffs, is pursuing just such a challenge.
Hopefully, when it rules on this case, the Supreme Court will recall the lofty words of Chief Justice Moon about respect for the law.
