GET SMART

GET SMART: Though there’s been a deafening cone of silence over County Attorney Al Castillo’s response to the Hawai`i Chapter of the American Civil Liberties Union’s (ACLU) letter that led to the cancellation of the county’s anti marijuana rally last Thursday, PNN has learned that Castillo has apparently opined that the ACLU was correct in telling the county that using county resources for the activities is illegal.

And to no one’s surprise Prosecutor Shaylene Iseri-Carvalho is none too pleased and has written two nasty letters to Castillo saying so.

Although we weren’t able to obtain Castillo’s “confidential” letter- which was addressed to Iseri, each individual council member, the Kaua`i Police Department (KPD) Chief Darryl Perry as well as three administration honchos- it is obvious from Iseri's responses, which were also “cced” to Mayor Bernard Carvalho, that Castillo supported the ACLU’s position.

In response to Castillo’s original email Iseri wrote

Subject: RE: Anti-Drug Rally Scheduled for February 17, 2011

Aloha Al,

It is quite unfortunate that you chose to send out an email with that tone. You are violating all of the county employees’ rights who chose to attend the rally on their own time. You are suppressing their First Amendment rights and your actions should not be condoned. I will be submitting a letter to the oversight body to review your actions. I have already received calls about you and other County officials that are prohibiting people from attending, even after work hours. Please stop doing this, as I believe, this exposes the county to significant liability.

Further, please be aware that your Deputy County Attorney, on county time, testified on a televised Council meeting with you present, to strongly oppose these same bills, that “other county officials” you make reference to in the press release, exposed the county to significant liability. Yet, I don’t see any reference to your office taking responsibility for its use of county resources to oppose legislation. You were present at the Council meeting and said ABSOLUTELY NOTHING. There is absolutely no authority for the County Attorney’s Office to testify in criminal matters. Let’s call a spade a spade. It is inappropriate to place blame when your office is guilty of the same actions. We are one County and to try to place blame when you were present when all this was happening is totally inappropriate, unprofessional and not in the County’s best interests.

Mahalo,

Shay

But the ACLU did not say that there was anything wrong with employees using their own time and resources to lobby on legislation. In fact they said the opposite in their original letter writing:

At the outset, we note that the American Civil Liberties Union ("ACLU") has long advocated for individual free speech rights, regardless of the content of that speech. Additionally, the ACLU supports and defends the right of government officials and employees to comment on issues in their personal capacities. The issue with the upcoming Rally is not about the individual police officers, prosecuting attorneys and other county employees expressing their viewpoints, it is about the potential use of public resources (including time and labor of County employees) to do so.

The ACLU letter came the same day as the council meeting- which we described yesterday and presumably did not address the presentation made there.

After a response, also confidential, from Castillo, Iseri not only admitted that her office wrote the press release that the ACLU used to point out the illegality of Iseri’s actions, but gives a detailed description of who else acted in the same vein, writing:

Al,

If you haven’t done your total investigation, let it be clear that our office prepared the “draft” release. The “draft” release was provided to KPD to review. It was Beth Tokioka that reviewed it, edited it, and sent it onward. Beth even took the liberty of making amendments to include a quote from Theresa Koki that was never in our initial draft release. Theresa Koki was never presented the release, and never made any quotes because I specifically had asked her about it when the release was amended . It was very clear to me that once we mentioned that Jake had prepared the release, you then took the position to blame KPD and OPA, because of quotes in the release. I find it very sad that because of the unprofessional manner in which this matter was handled at your doing, what started out as a great act of collaboration between KPD, the Administration and the Prosecutor’s Office, has turned into a chaotic event.

Shay

So what did the ACLU say?

Before the passage on employees actions on their own as private citizens they wrote:

Re: February 17 Anti-Drug Rally

Dear Chief Perry and Mr. Castillo:

We write to raise serious legal concerns about the Anti-Drug Rally scheduled for tomorrow, February 17, 2011 ("Rally"). In short, we believe that Kauai County employees are acting outside the scope of their limited, delegated authority, thus exposing the County to litigation. See Rees v. Carlisle, 113 Hawai`i 446, 153 P.2d 1131 (2007). Consequently, we recommend that you cancel or postpone the Rally to allow for further discussion.

1- Factual Background

As we understand it, the Kauai Police Department, the Prosecuting Attorney and others are sponsoring the Rally to "raise awareness and inform the community about the dangers associated with pending marijuana legislation." Kauai Police Department News Release, February 12, 2011. The News Release quotes Prosecuting Attorney Shaylene Iseri-Carvalho, speaking in opposition to specific pieces of legislation currently pending before the Hawaii State Legislature, as stating that `"[i]f passed, these measures will result in increased violent crime, economic crisis and a rise in marijuana usage among our children.'" Id. Finally, the News Release unequivocally states that "Nine police chiefs and prosecuting attorneys from each of the four counties stand united against this dangerous legislation." Id. (emphasis added). Thus, it cannot be disputed that the overriding purpose of the Rally is to persuade constituents to lobby legislators to vote against the pending bills, HB 1169 and SB 58.

The main case that the ACLU cites in its “Legal Background” is Rees v. Carlisle, saying that:

In 2002, the ACLU of Hawaii Foundation ("ACLU of Hawaii") filed suit on behalf of journalist Robert Rees against County Prosecutor Peter Carlisle. The gravamen of the case concerned Carlisle's improper use of public funds to actively advocate in favor of and campaign for the passage of a state constitutional amendment, Senate Bill No. 996 of 2002 ("amendment" or "Question 3"). It was undisputed that Carlisle used public resources for this purpose. The ACLU of Hawaii argued, inter alia, that: (a) neither the City Charter nor Hawaii Revised Statutes ("HRS") § 2840.6 authorized Carlisle's expenditure of public funds to engage in partisan political campaigning; and (b) any law that purported to grant such authority would run afoul of a myriad of constitutional rights, including free association, free speech and the fundamental right to vote.

In 2007, the Hawaii Supreme Court held that "neither the Revised Charter of Honolulu nor HRS § 28-10.6 authorize the prosecuting attorney to advocate for a proposed constitutional election[.]" Rees v. Carlisle, 113 Hawai`i 446, 456, 153 P.2d 1131, 1141 (2007). Based on this holding, the Court declined to reach the constitutional issues. A copy of this decision is attached for your ready reference.

The case seems to go way beyond the incident at hand, going to the very heart of a government employee using office time and/or resources to lobby for or against any legislation- a common practice of police and prosecutors statewide.

In a section called “Neither the Police Department Nor the Prosecutor Is Empowered to Use Public Funds to Advocate for a Particular Legislative Result” the letter says that:

The powers of the Police Department and the Prosecutor are set forth by the County of Kauai Charter, Article XI and IXA, respectively. Notably absent from these articles is any language that authorizes either the Police Department or the Prosecutor to spend public resources to educate the public about issues relating to crime research, prevention and education. Cf. H.R.S. §28-10.6 (authorizing the state Attorney General to spend public resources in this regard); R.C.H. 8-104(e-i) (passed post-Rees to authorize the Honolulu Prosecutor to do the same).

First, the plain language of the County of Kauai Charter limits the authority of the Prosecutor to prosecuting crimes. County of Kauai Charter, Article IXA, Sec. 9A.03. It is well-settled that the Prosecutor's powers and functions are limited to those expressly accorded to his office by the statute creating it. 63A Arri.Jur.2d, Prosecuting Attorneys § 20 (1984). 1 The County of Kauai Charter similarly limits the authority of the Police. County of Kauai Charter, Article XI, Section 11.05. 2 There is no statutory or other Given the similarity in language in Kauai's County Charter and the pre-2007 Honolulu County Charter, court decisions affecting the Honolulu Prosecutor are analogous to the situation now presented by the Kauai County Prosecutor. Honolulu's Department of the Prosecuting Attorney was established in Article VIII of the Revised Charter of Honolulu ("R.C.H.") of 1973 (1983). "Unless otherwise specifically provided by statute, his powers and functions are limited by § 8-105 [now § 8-104] of the Charter to the prosecution of criminal offenses against the laws of the State and the ordinances and rules and regulations of the city." Marsland v. Pang, 5 Haw. App. 463, 472, 701 P.2d 175, 184 (1985) (noting that the county prosecutor only "has been delegated the primary authority and responsibility for initiating and conducting criminal prosecutions within his county jurisdiction").

Furthermore, this limitation on the Prosecutor's powers also eviscerates any argument that engaging in the Rally is germane to the Prosecutor's function. Thus, as fully set forth infra wider Abood v. Detroit Board of Education, 431 U.S. 209 (1977), and its progeny, the conduct of the Police Department and Prosecutor's Office constitutes forced speech in violation of the First Amendment of the U.S. Constitution and Article I, §4, of the Hawaii Constitution.

2 Notably, the Charter empowers the Police to engage in "traffic safety education." "It is a general principle of statutory construction that when 'Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Barnhart v. Sigtnon Coal Co., Inc., 534 U.S. 438, 452, 122 S.Ct. 941, 951, 151 L.Ed.2d 908, 922 (2002) (citing Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17, 24 (1983)). Where the County wanted to provide the authority that grants the Police Department of the Prosecutor the power to expend public resources to educate the public on criminal justice issues.

Consequently, Rees V. Carlisle, 113 Hawaii 446, 153 P.2d 1131 (2007) is directly on point: neither Kauai's Prosecutor nor Police Department may engage in the type of activity proposed by tomorrow's Rally.

The ACLU letter goes onto say that not only are the actions of the county illegal but it exposes the county to liability. In a section marked “Using Public Resources to Fund the Rally and Associated Events Could Expose the County to Liability Under the First Amendment” they say that:

Such openly biased speech by public officials raises serious First Amendment questions. In the words of Justice Black: Probably no one would suggest that Congress could, without violating [the First] Amendment, pass a law taxing workers, or any persons for that matter (even lawyers), to create a fund to be used in helping certain political parties or groups favored by the Government to elect their candidates or promote their controversial causes.

Compelling a man by law to pay his money to elect candidates or advocate laws or doctrines he is against differs only in degree, if at all, from compelling him by law to speak for a candidate, a party, or a cause he is against. The very reason for the First Amendment is to make the people of this country free to think, speak, write and worship as they wish, not as the Government commands.

After a long passage describing various federal and Supreme Court of the US cases that support that, the ACLU letter concludes by saying:

Given the serious legal concerns about tomorrow's Rally, we would recommend that such Rally be canceled or postponed to allow for further discussion. A moderate delay will not hamper the legislative process on the contested bills given that HB 1169 appears to be dead and SB 58 has not yet been scheduled for hearing before the Senate Judiciary Committee.

Thank you in advance for your time and attention to this matter. If you have any questions or comments in the interim, please feel free to contact me at 383-8287 or Iperrin(at)acluhawaii)dot)org or Daniel Gluck, Senior Staff Attorney, at 522-5908 or dgluck(at)acluhawaii(dot)org.

Sincerely,
Lois K. Perrin
Legal Director

The fact that Castillo has apparently supported the ACLU’s position now makes it a controlling opinion that the county must follow in the future. We hope that county employees will remember this when they use their position and time and resources to testify and seek to influence legislation in the future.