Prosecutor's office should campaign for law improvements

THE ISSUE The state Supreme Court has ruled that the city prosecutor cannot use public resources to campaign for constitutional amendments.

CITY Prosecutor Peter Carlisle has been admonished by the state Supreme Court for using his office to push for a constitutional amendment in the 2002 general election. The state attorney general has such authority, and the City Council should grant the prosecutor similar leeway.

Carlisle's office spent at least $2,404 on paper, use of copying equipment and other functions to support an amendment that now allows county prosecutors to file charges by presenting evidence before a judge instead of a grand jury, a system called direct filing. He and his office called for its ratification in 66 speeches and 20 days of sign-waving.

The high court ruled that while the First Amendment allows Carlisle to "publicly comment on ballot measures," his conduct in supporting the amendment "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."

Carlisle had been assured by Charles W. Totto, executive director of the city Ethics Commission, before the campaigning that such activity was allowed. Totto advised him that city ethics ordinances do not prohibit the prosecutor "from using city resources to advocate for passage of the direct filing amendment," as long as he allowed employees to "opt out" of the activity without repercussions.

Carlisle maintained that he was empowered to do so under a state law that gives him power "under the authority of the attorney general" to prosecute offenses. However, the justices said that does not extend to the attorney general's authority to "make recommendations" to the general public.

As an elected official, the city prosecutor should have such authority. All county prosecutors and Attorney General Mark Bennett are members of the Hawaii Law Enforcement Coalition, which regularly endorses crime measures, including the direct filing amendment. They should have equal standing with Bennett to use their offices to support what they regard as improvements in the law.

"If I'm muzzled from sign-waving and speaking engagements, then I'm concerned," Carlisle said.

Fortunately, the Supreme Court's ruling allows direct filing to remain intact. The high court invalidated the amendment's 2002 ratification because of flaws in the process, and voters approved it again in 2004.

Carlisle said last year that prosecutors use direct filing in about 10 percent of the felony cases, mostly for Class C felonies such as auto thefts and less serious drug cases punishable by no more than five years in prison.