HONOLULU - In a victory for voter fairness on election ballot measures, the state Supreme Court sided with the American Civil Liberties Union of Hawaii in ruling that a Honolulu prosecutor unlawfully used public funds and resources to urge voters to approve a proposed constitutional amendment.

“The court made very clear that the law does not authorize the prosecutor to use taxpayer dollars to fund one side of public debate,” said Lois K. Perrin, ACLU of Hawaii Legal Director and an attorney in the case. “The decision draws the appropriate line between a public official speaking out on an issue, which is constitutionally protected, and the use of public funds to promote that position, which is not allowed.”

The ACLU brought the case on behalf of the late Robert Rees, a journalist and political commentator, who challenged Honolulu City Prosecutor Peter Carlisle's use of public funds and resources to campaign for the passage of a ballot initiative in the November 2002 general election. The ballot question asked voters to approve a constitutional amendment to establish “information charging,” a mechanism that grants prosecutors expanded power to impose felony charges without first presenting evidence to a grand jury or a judge.

In a unanimous 29-page opinion, the Court said that the prosecutor'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."

Earle A. Partington, ACLU cooperating counsel in the case, said, "We are very pleased with the ruling. Elected officials cannot abuse their positions by using public funds and resources to promote constitutional amendments. This gives the government an unfair advantage."

In court filings, Carlisle said the prosecutor’s office spent at least $2,404, including use of equipment and resources, to urge people to vote yes on the ballot question.

"This is a victory for Mr. Rees' widow, Keene Rees, and for every taxpayer in the state of Hawaii who opposed the passage of Question 3,” said Perrin. “Election questions will now be left to the voters to decide, as they should be."

In a previous case, Watland v. Lingle, the ACLU successfully challenged the procedures used to place the “information charging” amendment on the 2002 general election ballot. Representing 46 registered voters, the ACLU argued that the state's failure to follow constitutionally prescribed procedures in preparing and displaying voter education materials compromised a fair election. The Hawaii Supreme Court found that voters were provided misinformation regarding the proposal and invalidated the results. The amendment ultimately passed in the November 2004 general election.