City Prosecutor Peter Carlisle did not have the legal authority to use taxpayers' money in urging voters to adopt a 2002 constitutional amendment, the Hawai'i Supreme Court unanimously ruled yesterday.

The high court reversed a 2004 decision by a state judge who threw out a lawsuit by the late political commentator Robert Rees and the American Civil Liberties Union of Hawai'i.

The suit challenged Carlisle's use of city resources to push for the amendment that makes it easier for prosecutors to send certain felony cases to trial.

"It's a great victory for the people because it says elected officials cannot abuse their position by using public funds and public resources to promote constitutional amendments," said Earle Partington, a volunteer ACLU lawyer who argued the case. "This gives the government an unfair advantage.

"They get to use funds that belong to all of us to promote one side."

The court, however, did not grant Rees' request to order Carlisle to pay back the city for the taxpayer resources spent on the campaign.

Carlisle had a brief comment on the decision.

"I'm not sure how it applies to speaking engagements and sign waving and if I'm muzzled from doing that, I'm concerned," he said.

Carlisle said he was going to further analyze the decision and wait for assistance from his lawyers before deciding what he might do next in the case.

PUBLIC RESOURCES

The 2002 amendment, which was approved by 57 percent of the voters, permits city and Neighbor Island prosecutors to send defendants charged with lower level felonies to trial based on written reports reviewed by a judge.

Before the amendment, the only two ways to send felony cases to trial was either through a preliminary hearing or a grand jury indictment.

Carlisle, a vocal supporter of the measure, acknowledged that he was acting in his role as prosecutor in pushing for the amendment; that his office used public resources, including paper, copying equipment, telephones and a Web site to promote the passage; and that in addition to the time he and his employees spent pushing for the measure, the office spent at least $2,404 in public funds.

'PARTISAN ADVOCATE'

Chang ruled that the prosecutor's duties include advocating for issues related to his office, and courts have recognized prosecutors can use government money to educate the public on those matters.

The high court justices agreed with Carlisle that he has the authority to publicly comment on ballot measures that deal with the initiation of prosecutions.

"The problem in this case is that Carlisle'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," the high court said in the opinion written by Associate Justice James Duffy.

Rees died in 2005 after a yearlong battle with cancer. Keene Rees, his wife of 44 years, replaced her late husband as the plaintiff in the taxpayer lawsuit.

"I'm please with the decision and not surprised," said Lois Perrin, ACLU Hawai'i's legal director. "It was very clear that the prosecutor acted without legal authority when he used public resources to advocate for one side of the constitutional amendment. It's something that simply should not have been done."

ETHICS OPINION

Carlisle had asked the Honolulu Ethics Commission for an opinion on whether it would be appropriate to use city resources to push for the amendment. In response, Charles Totto, the commission executive director, replied that city ethics laws do not prohibit the prosecutor "from using city resources to advocate for passage of the direct filing amendment."

The high court ruled that out of fairness, it was not going to order Carlisle to pay the city for the resources spent on the campaign because the justices were addressing the issue for the first time and because of Totto's opinion.