Posted on: Sunday, September 26, 2004

Judge clears Carlisle in ballot-issue spending

By Ken Kobayashi
Advertiser Courts Writer

City Prosecutor Peter Carlisle did not break the law by using public money to urge voters to adopt a constitutional amendment proposal on the general election ballot in 2002, a state judge has ruled.

Political commentator Bob Rees and the ACLU of Hawai'i sued Carlisle for spending what their lawyer Earle Partington said was more than $3,000 in city money and resources to support the proposal allowing prosecutors to send felony cases to trial through "direct filing."

Circuit Judge Gary Chang ruled in favor of Carlisle on Friday and tossed the lawsuit.

The amendment proposal will again be on the Nov. 2 general election ballot.

Chang said part of the prosecutor's duties is to advocate for matters related to his office, and courts have recognized that prosecutors can use government money to educate the public on those issues. When prosecutors talk publicly about a ballot question, there's "no doubt" which way they want the public to vote, he said.

To draw a "bright line" between whether the use of public money is constitutional based on whether the prosecutor urges the public to vote a certain way is an "artificial and arbitrary distinction," the judge said.

Carlisle's lawyer Brandee Faria yesterday called the ruling justified. Educating the public, she said, is part of the prosecutor's role.

Carlisle, who just won re-election in a race against former prosecutor Keith Kaneshiro, said the ruling was supported by both the facts and the law and he won't let the threat of lawsuits keep him from doing his job. He suggested that some groups "are all for free speech as long it is free speech they agree with."

But Rees, a freelance writer who occasionally contributes to The Advertiser, and the ACLU said the decision may set a troublesome precedent and they are confident they will win on appeal.

"Basically what this decision means is any elected official can now use public funds to campaign for their friends, for political allies," Rees said.

ACLU legal director Lois Perrin said the use of public money to support one side of an issue "squelches the voice of the minority, the voice of people who may not agree with that particular position or that particular candidate."

She said that regardless of the amount of money at issue, the decision "does seem to set a precedent that would allow for the use of public funds in order to support partisan issues, and that simply can't be constitutional."

The lawsuit asked that Carlisle repay the city for any money and resources used in support of the amendment proposal.

Carlisle has long been a staunch supporter of the proposal that would allow judges to order felony defendants to trial based on written reports from city and county prosecutors. A defendant now must face trial after a judge's ruling at a preliminary hearing or by a grand jury indictment.

In 2002 general election, the amendment proposal got 57 percent of the vote. Before it could be implemented, the Hawai'i Supreme Court agreed with a challenge by the ACLU and struck down the amendment.

The court ruled that the state disregarded the process mandated by the constitution and essentially did not adequately inform the public about the proposal.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser .com or 525-8030.