153 P.3d 1131 (Hawai'i 2007), 26998, Rees v. Carlisle

Docket Nº:26998.
Citation:153 P.3d 1131, 113 Hawai'i 446
Opinion Judge:Opinion of the Court by DUFFY, J.
Party Name:Keene H. REES, Plaintiff-Appellant, v. Peter CARLISLE, City and County of Honolulu Prosecuting Attorney, in his official and individual capacities, Defendant-Appellee.
Attorney:Lois K. Perrin (of American Civil Liberties Union of Hawaii Foundation) and Earle A. Partington (of Law Office of Earle A. Partington), on the briefs, for plaintiff-appellant Robert Rees., John F. Perkin and Brandee J.K. Faria, Honolulu, (of Perkin & Faria, LLLC), on the briefs, for defendant-app...
Case Date:March 12, 2007
Court:Supreme Court of Hawai'i
 
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Page 1131

153 P.3d 1131 (Hawai'i 2007)

113 Hawai'i 446

Keene H. REES, Plaintiff-Appellant,

v.

Peter CARLISLE, City and County of Honolulu Prosecuting Attorney, in his official and individual capacities, Defendant-Appellee.

No. 26998.

Supreme Court of Hawai'i

March 12, 2007

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[Copyrighted Material Omitted]

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Lois K. Perrin (of American Civil Liberties Union of Hawaii Foundation) and Earle A. Partington (of Law Office of Earle A. Partington), on the briefs, for plaintiff-appellant Robert Rees.

John F. Perkin and Brandee J.K. Faria, Honolulu, (of Perkin & Faria, LLLC), on the briefs, for defendant-appellee Peter Carlisle, City and County of Honolulu Prosecuting Attorney, in his official and individual capacities.

MOON, C.J., LEVINSON, ACOBA, and DUFFY, JJ., and Circuit Judge CRANDALL, in Place of NAKAYAMA, J., Recused.

OPINION

DUFFY, J.

Plaintiff-Appellant Robert Rees 1 appeals from the November 23, 2004 final judgment of the Circuit Court of the First Circuit, 2 granting summary judgment in favor of Defendant-Appellee Peter Carlisle, City and County of Honolulu prosecuting attorney, and against Rees on all counts, in a suit over the legality of Carlisle's use of public funds and other public resources to advocate in a state-wide general election for passage of an amendment to the Hawai'i Constitution.

On appeal, Rees makes the following arguments: (1) the circuit court erred in ruling that Carlisle's use of public funds and resources to advocate for a particular election result is authorized by state law; (2) the circuit court erred to the extent it determined that Carlisle's actions constituted government speech; (3) the circuit erred in ruling that Carlisle's actions did not violate the First Amendment to the United States Constitution or article I, section 4 of the Hawai'i Constitution; (4) the circuit court erred in finding that Carlisle's actions did not violate the equal protection clauses of the Fourteenth Amendment to the United States Constitution and article I, section 5 of the Hawai'i Constitution; and (5) the circuit court erred in ruling that it did not have jurisdiction to consider whether Carlisle's conduct violated Revised Ordinances of Honolulu (ROH) § 3-8.6.

Based on the following, we vacate the circuit court's November 23, 2004 final judgment, and remand to the circuit court with instructions to grant Rees's motion for summary judgment on his declaratory judgment claim that Carlisle acted without legal authority when he used public funds and resources to advocate for a proposed constitutional amendment in a general election.

I. BACKGROUND

A. Factual Background

Peter Carlisle has been the elected prosecuting attorney for the City and County of Honolulu since January 1997. In 2001, Carlisle promoted a bill in the Hawai'i legislature that proposed an amendment to the Hawai'i Constitution that was intended to "permit prosecutors and the attorney general to initiate felony criminal charges by filing a written information signed by the prosecutor or the attorney general setting forth the charge in accordance with procedures and conditions to

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be provided by the state legislature." S.B. No. 996, H.D. 1, C.D. 1 (Haw.2002). This bill is often referred to as the "direct filing" bill.

Following legislative approval of the bill in 2002, Carlisle sought the opinion of the City and County of Honolulu Ethics Commission as to whether it would be appropriate under the City and County ethics laws to use City and County resources, including personnel, to work for approval of the proposed amendment. The Executive Director of the Commission, Charles W. Totto, responded, in an e-mail correspondence dated June 7, 2002, that "the short answer is yes, with some restrictions." The e-mail continued:

You informed me that [the Department of the Prosecuting Attorney] would like to advocate on behalf of a measure that will be on the state-wide election ballot this November. The issue is whether the state constitution should be amended to permit the process of "direct filing" as an alternative means to begin felony prosecutions. You envision using [the Department's] resources, such as personnel, facilities and equipment, to work for the approval of direct filing on the ballot.

ROH Sec. 3-8.6 sets forth certain restrictions on the conduct of city officers and employees regarding "Campaign assistance." "Campaign assistance" includes any service used to assist the effort to place a question on an election ballot or to approve or reject such a question. ROH Sec. 3-8.5(b)(2). As a result there are restrictions on the officers and employees who are involved in supporting the direct filing proposal. These restrictions are stated in ROH Sec. 3-8.6(c). They focus on protecting city personnel from coercion, denial of employment, discharge or demotion, harassment for failing to render campaign assistance. Further, the limitations ban promotion and other advantages as a result of an officer's or employee's rendering campaign assistance. You may want to familiarize yourself with the specific restrictions.

The ethics laws do not prohibit [the Department of the Prosecuting Attorney] from using city resources to advocate for passage of the direct filing amendment. However, it appears that ROH Sec. 3-8.6(c) gives officers and employees the right to refuse to render campaign assistance regarding a question on an election ballot without any disadvantage to their employment resulting form [sic] such a refusal. It also ensures that personnel who render assistance will not be treated favorably compared with those who do not. Therefore, I recommend that you inform each officer or employee that he or she may opt out of the work related to the direct filing amendment without concern for any resulting reward or reprisal.

Thereafter, Carlisle campaigned extensively to promote the proposed amendment, identified as Question 3 on the November 2002 ballot, in various ways, including the expenditure of public resources and utilization of employees in his office in that effort. Carlisle admits to the following: (1) that he campaigned for the passage of Question 3 in his capacity as prosecuting attorney and not as a private citizen; (2) that he and other representatives of the Office of the Prosecuting Attorney actively advocated for passage of Question 3 in speaking engagements on sixty-six (66) separate dates between April 25 and November 4, 2002; (3) that he and fifty-seven (57) other representatives of his office sign-waved in support of Question 3; (4) that his office used public resources, including paper, copying equipment, telephones, and a website to promote passage of Question 3; (5) that the website of the Office of the Prosecuting Attorney encouraged viewers to "Vote Yes" on Question 3; (6) that in addition to the time that he and his office employees spent advocating for passage of Question 3, his office expended public resources of at least $2,404.27 in the campaign for passage of Question 3; (7) that he sent an e-mail to all employees in his office calling for their support in advocating for passage of Question 3 in their interactions with members of the public and asking for suggestions on "how to sell this concept to the public"; and (8) that while all of his office employees who participated in the campaign to promote the passage of Question 3 were volunteers, some of the volunteers were asked to work on promoting Question 3 on official work time.

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The City and County was not reimbursed for the time, labor, and resources utilized by the Office of the Prosecuting Attorney in advocating for the passage of Question 3.

B. Procedural History

Rees filed suit against Carlisle in his personal and official capacity on May 21, 2002, stating the following legal claims: (1) that Carlisle's activity violated Rees's constitutional free speech rights under article I, section 4 of the Hawai'i Constitution and the First Amendment to the United States Constitution and that such violation is actionable pursuant to 42 U.S.C. § 1983; (2) that Carlisle's activity violated Rees's constitutional right to a free and fair election under the due process clauses of article I, section 5 of the Hawai'i Constitution and the Fourteenth Amendment to the United States Constitution, actionable pursuant to 42 U.S.C. § 1983; (3) common law qui tam; and (4) that Rees is entitled to a declaratory judgment under Hawai'i Revised Statutes (HRS) § 632-1 (1993) that Carlisle's actions (a) exceeded any authority granted to the prosecuting attorney by the City Charter and were not authorized by HRS § 28-10.6, (b) were in violation of ROH § 3.8-6, and (c) violated Rees's free speech and free and fair election rights under the Hawai'i and United States Constitutions, as previously alleged. In addition to requesting a declaratory judgment regarding Carlisle's activity, Rees also requested: (1) an injunction ordering Carlisle to compensate the City for (a) all taxpayer resources used to promote passage of the amendment and (b) the portion of the salaries paid to employees of his office for time spent campaigning for passage of the amendment; and (2) an injunction prohibiting Carlisle from campaigning, requesting campaign assistance of city employees, or using taxpayer funds to campaign on ballot questions in the future.

On November 4, 2003, Carlisle filed a motion to dismiss or for summary judgment, in which Carlisle argued: (1) that Rees lacked standing to challenge Carlisle's conduct; (2) that Carlisle's actions did not constitute a "forced speech" claim actionable under 42 U.S.C. § 1983; (3) that Carlisle's actions did not constitute infringement of fundamental voting rights actionable under 42 U.S.C. § 1983; and (4) that Hawai'i law...

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