McGuire v. County of Hawai'i. Concurring Opinion by Ginoza, J, filed 04/08/2025 [ada].

• Court: Hawaii Supreme Court
• Decided: April 8, 2025
• Docket: SCCQ-24-0000165
• Status: Published

Opinion

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Electronically Filed Supreme Court SCCQ-XX-XXXXXXX 08-APR-2025 08:42 AM Dkt. 62 OP

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

PUEO KAI McGUIRE, Plaintiff-Appellant,

vs.

COUNTY OF HAWAIʻI; MITCHELL D. ROTH; KELDEN WALTJEN; KATE PERAZICH; and SYLVIA WAN, Defendants-Appellees.

SCCQ-XX-XXXXXXX

CERTIFIED QUESTION FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAIʻI (CASE NO. 23-00296 JAO-KJM)

APRIL 8, 2025

RECKTENWALD, C.J., McKENNA, EDDINS, AND DEVENS, JJ.; WITH GINOZA, J., CONCURRING SEPARATELY

OPINION OF THE COURT BY EDDINS, J.

The United States District Court for the District of

Hawaiʻi certified a question to this court: *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

Under Hawaiʻi law, does a county Prosecuting Attorney and/or Deputy Prosecuting Attorney act on behalf of the county or the state when he or she is preparing to prosecute and/or prosecuting criminal violations of state law?

Our answer: “the county.”

We accepted the question per Hawaiʻi Rules of Appellate

Procedure Rule 13. As with recent certified questions from the

Ninth Circuit Court of Appeals and Hawaiʻi’s federal district

court, we appreciate the federal courts’ respect for the

sovereignty of Hawaiʻi by inviting our court to first answer an

unsettled area of state law.

The federal case involves a 42 U.S.C. § 1983 action for,

among other claims, malicious prosecution. Pueo McGuire sued

the County of Hawaiʻi. He also sued the county prosecutor, and

three deputy prosecutors in their official and individual

capacities. They violated his constitutional rights, McGuire

alleged.

Our answer to the district court’s question depends on who

has final policymaking authority to prosecute crimes in a

county. See McMillian v. Monroe Cnty., 520 U.S. 781, 785

(1997).

The county does. We hold that, in Hawaiʻi, county

prosecuting attorneys and their deputies are county officials

when they are preparing for and prosecuting state law offenses.

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I. The “actual function” of government officials is a state law matter

First, some background about the role of state law in this

federal civil rights action, and where sovereign immunity comes

into play.

We start with 42 U.S.C. § 1983’s text. It says:

Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

This statute has no qualifiers and its remedy is

categorical. Textually, “[e]very person” has no exceptions. 42

U.S.C. § 1983. Section 1983 exempts one “person” though -

“judicial officer[s].” Id. All others who act under “color of

any” law and deprive another of “any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable

to the party injured.” Id.

States are invulnerable to suit unless the state waives its

sovereign immunity, or Congress overrides a state’s immunity

under the Fourteenth Amendment. U.S. Const. amend. XI; Will v.

Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). When

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Congress passed § 1983, it “[did not intend] to disturb the

States’ Eleventh Amendment immunity and so to alter the federal–

state balance . . . [.]” Will, 491 U.S. at 66. Therefore,

under 42 U.S.C. § 1983, states and state officials (in their

official capacities) are not “persons.” Id. at 71.

In contrast, municipalities – like the County of Hawaiʻi -

are persons. While the Eleventh Amendment protects states from

suit, Congress intended § 1983 “persons” to include

muncipalities. Monell v. Dep’t of Soc. Servs. of the City of

N.Y., 436 U.S. 658, 694 (1978). “[T]here is certainly no

constitutional impediment to municipal liability.” Id. at 690

n.54. Local governments “are not considered part of the State

for Eleventh Amendment purposes.” Id. Thus, a municipality and

its officials are “persons,” and not immune to § 1983 suits.

McMillian imparts a twofold test to determine whether an

official’s conduct may result in municipal liability. 520 U.S.

at 785. To hold a local government liable for an official’s

conduct, a plaintiff must first establish that the official had

final policymaking authority for the government “concerning the

action alleged to have caused the particular constitutional or

statutory violation at issue.” Id. Second, a plaintiff must

establish that the official functioned as the policymaker of the

local government for the particular area or issue in question.

Id. at 786.

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Federalism principles establish that the test is “dependent

on an analysis of state law.” Id. at 786, 794 (rejecting

plaintiff’s argument - that a state-by-state and county-by-

county inquiry creates a lack of uniformity for nationwide law

enforcement policy – because, among other reasons, “a crucial

axiom of our government[] [allows] the States [to] have wide

authority to set up their state and local governments as they

wish”); Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)

(“Authority to make municipal policy may be granted directly by

a legislative enactment or may be delegated by an official who

possesses such authority, and of course, whether an official had

final policymaking authority is a question of state law.”).

Here, there’s no dispute about final policymaker authority.

Both sides agree that the county’s prosecuting attorney makes

the final call to prosecute someone. But both sides say that

Hawaiʻi law resolves the second part of McMillian’s test their

way. The federal district court considered the matter

unsettled.

Thus, the certified question. Do county prosecutors act as

county or state officials when they prosecute?

Federal courts look at an official’s “actual function” to

determine whether they act on behalf of the state or the county.

McMillian, 520 U.S. at 791. The actual function test for

section 1983 actions involves state or county “control” over the

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official. See id. A key Ninth Circuit case that applies this

test, the district court observes, is Weiner v. San Diego Cnty.,

210 F.3d 1025, 1028 (9th Cir. 2000).

Thus, we need to decide who controls county prosecutors.

Next, we canvass our state constitutional and statutory

structure, county charters, and case law. This review supports

our view that the state does not “control” county prosecutors

for purposes of 42 U.S.C. § 1983 actions.

II. Federal law sets forth the general “control” test for municipal liability, but does not narrowly constrain our Hawaiʻi law analysis

In § 1983’s context, “control” is measured by the

government entity’s degree of control over the government

official. Because this examination involves whether the entity

can - and does - actually influence official conduct, the mere

existence of the ability to control is not enough.

McMillian held that sheriffs were state officials. 520

U.S. at 793. This decision hinged on the Alabama Governor and

attorney general’s “direct control” over county sheriffs. Id.

at 791. Per Alabama law, the governor and state attorney

general could “direct the sheriff to investigate ‘any alleged

violation of law in their counties.’” Id. The sheriff was then

required to “promptly” write a report to the state official in

charge of the investigation. Id. The report had to include

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findings and a witness list, and “summarize[e] what the

witnesses can prove.” Id.

McMillian also suggested what is not sufficient to

establish “control.” Control of the purse strings does not

necessarily mean control over a county’s prosecuting attorney.

Payment of a sheriff’s salary “does not translate into control

over him.” Id. The county’s ability to deny funds to sheriffs

for supplies, lodging and expense reimbursement meant, at most,

“attenuated and indirect” influence over the sheriffs’

operations. Id. at 791-92. Thus, McMillian reasoned that

together, the county’s payment of the sheriffs’ salary and

county treasury funding of the sheriff’s department equipment,

was insufficient “control” to make sheriffs county officials.

Id.

Similarly, the Ninth Circuit held that “a [California]

county district attorney acts as a state official when deciding

whether to prosecute an individual.” Weiner, 210 F.3d at 1030.

California’s constitution grants the state’s attorney general

(AG) significant “control.” See id. at 1029. The California AG

has “direct supervision over every district attorney . . . in

all matters pertaining to the duties of their respective

offices[.]” Cal. Const. art. V, § 13.

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The court also considered four California statutory

provisions persuasive. Weiner, 210 F.3d at 1029. First,

prosecutions are conducted in the name of the state. Id.

Second, county authorities may not affect the independent

investigative and prosecutorial functions of the sheriff and

district attorney. Id. Third, the attorney general directly

supervises county district attorneys, may require them to submit

reports, and may assist the district attorney or take full

charge of any investigation or prosecution. Id. And fourth,

the attorney general can “‘call into conference the district

attorneys . . . for the purpose of discussing the duties of

their office[], with the view of uniform and adequate

enforcement of’ state laws.” Id.

There was no county control, Weiner held. The district

attorneys’ classification as county officers, salary-setting by

the county, the county’s supervision of district attorneys and

their public fund usage, district attorney residence

requirements, and county removal procedures for district

attorneys were not enough to establish county “control.” Id. at

1029-30. Plus, California statutes barred county authorities

from reviewing a district attorney’s investigative and

prosecutorial functions, and reserved direct supervision over

district attorneys to the attorney general. Id. at 1030 (citing

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Cal. Gov’t Code § 26303 and § 12550). Thus, county district

attorneys acted on behalf of the state. Id.

Together, McMillian and Weiner show that § 1983’s “state or

county” inquiry turns on direct control, not implied control.

See McMillian, 520 U.S. at 791; Weiner, 210 F.3d at 1030. But

these federal cases do not give us a clean analogue to assess

“control” under our state laws.

Hawaiʻi’s constitutional and statutory framework, and case

law do not neatly compare to California’s constitutional setup.

As described in Weiner, California’s constitution grants the

attorney general “direct supervision over every district

attorney . . . in all matters pertaining to the duties of

[their] respective offices, and may require any of said officers

to make reports concerning the investigation, detection,

prosecution, and punishment of crime in their respective

jurisdictions[.]” See 210 F.3d at 1029; Cal. Const. art. V,

§ 13.

The Hawaiʻi Constitution identifies the attorney general as

“chief legal officer.” Haw. Const. art. V, § 6. But it does

not confer anywhere near the degree of control over county

prosecutors present in the California Constitution.

California and Hawaiʻi law are misaligned. Like its

constitution, California law provides that the “Attorney General

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has direct supervision over the district attorneys of the

several counties of the state and may require of them written

reports as to the condition of public business entrusted in

their charge.” Cal. Gov’t Code § 12550. Its attorney general

“may [also] assist the district attorney or take full charge of

any investigation or prosecution.” Weiner, 210 F.3d at 1029

(citing Cal. Gov’t Code § 12550).

In contrast, missing from the Hawaiʻi Constitution and

Hawaiʻi statutes are provisions that grant the attorney general

“direct supervision” over county prosecutors or the ability to

take “full charge of any investigation or prosecution.” See

Cal. Const. art. V, § 13; Cal. Gov’t Code § 12550 (emphasis

added).

Our state law governs. Federal law plays a limited role

here. To repeat, an official’s “actual function” and the level

of “control” rendering persons state or county officials in

Hawaiʻi is a state law matter. See City of St. Louis v.

Praprotnik, 485 U.S. 112, 124 (1988) (identification of

policymaking officials is not a question of federal law because

“States have extremely wide latitude in determining the form

that local government takes, and local preferences have led to a

profusion of distinct forms”). Because this is a state law

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consideration, we are not limited by factors outlined in federal

cases to determine control under state law.

We now look to the history of state and county

prosecutorial power in Hawaiʻi, the Hawaiʻi Constitution, state

statutes, and county charters.

III. The history of prosecutorial authority in Hawaiʻi

The Attorney General’s amicus brief recounts the history of

prosecutorial authority in Hawaiʻi.

In 1844, King Kamehameha III created the attorney general

position. First Act Kamehameha III, An Act to Organize the

Executive Ministry of the Hawaiian Islands, § 2 (Oct. 29, 1845).

The attorney general provided advice and counsel to the King and

his ministers, issued legal opinions to the Legislative Council,

appeared for the government in all legal proceedings, and

investigated and prosecuted “all crimes.” Second Act Kamehameha

III, An Act to Organize the Executive Departments of the

Hawaiian Islands, part 5, §§ 4-5; id. at part 5, tit. 1, § 1;

id. at part 5, tit. 2, ch. 3 (Apr. 27, 1846). In 1846, King

Kamehameha III empowered the attorney general to appoint

district attorneys to serve as his agents in prosecuting minor

offenses at “each of the ports of entry and departure.” Id. at

part 5, tit. 2, ch. 3, § 21. District attorneys were removable

at the pleasure of the attorney general. Id. But in 1847, the

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office of the attorney general was suspended, and the AG’s

powers were divided. Joint Resolution of May 4, 1847, § 2. The

new law allowed superior court judges to appoint and remove

district attorneys for the judicial districts. Id. At the

time, Hawaiʻi was divided into four judicial districts, the first

encompassing “[t]he Island of Oahu,” the second encompassing

“[t]he islands of Maui, Molokai and Lanai,” the third

encompassing “[t]he Island of Hawaii,” and the fourth

encompassing “[t]he islands of Kauai and Niihau[.]” Third Act

Kamehameha III, An Act to Organize the Judiciary Department of

the Hawaiian Islands, ch. 3, art. 1, § 1 (Sept. 7, 1847). That

system remained for nearly 60 years.

In 1905, Act 39 divided the Territory of Hawaiʻi into

counties. 1905 Haw. Sess. Laws Act 39. Each elected county

attorney served as the “public prosecutor for the County” and

prosecuted Territory laws and County Board of Supervisors

ordinances “on behalf of the people.” 1905 Haw. Sess. Laws Act

39, at §§ 12, 90 at 50-51, 75. Each county attorney was “a

deputy of the Attorney General of the Territory,” but this

designation did not “prevent the Attorney General or any of

[their] deputies from appearing and representing the Territory

in any case in which the rights or interests of the Territory

are involved.” Id. at §§ 95, 96 at 77.

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A 1931 case changed things. The Massie trial, the murder

of Joseph Kahahawai (one of five men falsely accused of raping

Thalia Massie), and the trial of his killers, Massie’s Navy

officer husband and “two of [his] navy protégées,” received

national attention. See Stewart Chang, Bridging Divides in

Divisive Times: Revisiting the Massie-Fortescue Affair, 42 U.

Haw. L. Rev. 4, 5–6, 29 (2020); James Podgers, When Change

Arrived, A.B.A. J., Oct. 2006, at 64. Mainland press expressed

outrage at “the failure of Hawaii’s justice system to protect

white women from attacks by natives.” Podgers, supra, at 64.

Fearing mainland interference in local affairs (even a

declaration of martial law) the Territory quickly established a

public prosecutor for Honolulu who was subject to removal by the

attorney general. 1932 1st Spec. Sess. Haw. Sess. Laws Act 13,

§ 1 at 18; Alexa Fujise, A Hundred Years in the Pursuit of

Justice, Haw. B.J., Oct. 1999, at 71; see Chang, supra, at 5–6,

29 (“Indeed, the involvement of the mainland in pressuring

territorial Governor Judd to commute the sentences was troubling

for the local population. Even though for Judd the commutation

of the sentences was less racially motivated than politically

expedient, the pressures from the mainland were heavily steeped

in racist hysteria, which was then being imposed on the

islands.”); Mike Farris, A Death in the Islands: The Unwritten

Law and the Last Trial of Clarence Darrow, 297 (2016) (“Even

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President Herbert Hoover got into the act, under pressure from

his old friend Walter Dillingham, meeting with his cabinet to

discuss whether to declare martial law in Hawaii unless Judd

pardoned the defendants [who murdered Joseph Kahahawai].”).

The Territorial Legislature passed a “bill” to provide for

a public prosecutor in Honolulu. 1932 1st Spec. Sess. Haw.

Sess. Laws Act 13 (approved February 9, 1932). The Act required

the public prosecutor to “[a]ttend all courts in the city and

county and under the control and direction of the attorney

general conduct on behalf of the people all prosecutions therein

for [Territory law and county ordinance] offenses.” Id. at § 1

at 19 (emphasis added).

The Massie affair - the trial of the “Ala Moana Boys,” the

murder of an innocent young Native Hawaiian man, and the

commutation of his killers’ sentences to one hour – is well-

chronicled. See, e.g., David E. Stannard, Honor Killing: Race,

Rape, and Clarence Darrow’s Spectacular Last Case (2006); John

P. Rosa, Local Story: The Massie-Kahahawai Case and the Culture

of History (2014); American Experience: The Massie Affair (PBS

television broadcast Apr. 18, 2005).

Honolulu now had a prosecutor who was appointed by the

mayor, and worked “under the control and direction of the

attorney general.” 1932 1st Spec. Sess. Haw. Sess. Laws Act 13,

§ 1 at 19. The 1932 law authorized the attorney general to

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remove the Honolulu Prosecuting Attorney. Id. at § 1 at 18. An

AG exercised that power in 1947. See Fujise, supra, at 71.

Acting Attorney General Rhoda Lewis, with the approval of

Governor Ingram Stainback, removed Honolulu Prosecuting Attorney

Joseph Esposito for “demonstrated unfitness.” See Fujise,

supra; Harry Stroup, Stainback Fires Esposito - Governor, Lewis

Take Joint Action on C-C Prosecutor, The Honolulu Advertiser,

Oct. 11, 1947, at 1.

In 1957, the Territorial Legislature revised the law. The

public prosecutor, their deputies, and county attorneys were no

longer deputies of the state attorney general. Amemiya v.

Sapienza, 63 Haw. 424, 426, 629 P.2d 1126, 1128-29 (1981)

(citing 1957 Haw. Sess. Laws. Act 233). And no longer could the

AG remove the public prosecutor. Id. Committee reports do not

describe why the legislature made these changes. Id. (citing H.

Stand. Comm. Rep. No. 518, in 1957 House Journal, at 786).

Today, this division of prosecutorial power – where county

prosecutors are not deputies of the attorney general - remains.

IV. The state prosecutorial framework today

Today’s prosecutorial framework delegates power to both the

state and county.

The Hawaiʻi Constitution designates the attorney general as

the state’s “chief legal officer.” Haw. Const. art. V, § 6.

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Hawaiʻi Revised Statutes (HRS) § 26-7 (2009) identifies the AG’s

duties.

Hawaiʻi’s chief legal officer provides legal services to the

executive and legislative branches. HRS § 26-7. The AG also

represents the state “in all civil actions in which the State is

a party” and prosecutes cases that involve “agreements, uniform

laws, or other matters which are enforceable in the courts of

the State.” Id. Further, the AG approves the “legality and

form [of] all documents relating to the acquisition of any land

or interest in lands by the State.” Id. There’s more. The

attorney general “shall be charged with such other duties and

have such authority as heretofore provided by common law or

statute.” Id.

HRS § 26-7 describes the attorney general’s prosecutorial

powers. The AG shall “prosecute cases involving violations of

state laws.” Id. Prosecuting crimes though is just one part of

the attorney general’s responsibilities. And HRS § 26-7’s

“unless otherwise provided by law” language restrains that

prosecutorial authority.

The AG is tasked generally with state law prosecutions.

The AG “shall appear for the State personally or by deputy, in

all the courts of record, in all cases criminal or civil in

which the State may be a party.” HRS § 28-1 (2009).

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Additionally, “[t]he attorney general shall be vigilant and

active in detecting offenders against the laws of the State, and

shall prosecute the same with diligence.” HRS § 28-2 (2009).

The Hawaiʻi Constitution also advances home rule, local

government with minimal state interference. Our state

constitution affords each county the “power to frame and adopt a

charter for its own self-government.” Haw. Const. art. VIII,

§ 2. Concerning a county’s authority to prosecute crime, state

law grants each county the “power to provide by charter for the

prosecution of all offenses and to prosecute for [state law

offenses] under the authority of the attorney general of the

State.” HRS § 46-1.5(17) (2012 & Supp. 2023). Each county’s

charter provides for the prosecution of state law offenses

within its county jurisdiction, and each county has its own

prosecuting attorney whose election or appointment,

qualifications, powers, and duties are provided for by charter.

Hawaiʻi County Charter, art. IX; Revised Charter of the City and

County of Honolulu, art. VIII; Charter of the County of Kauaʻi,

art. IXA; Charter of the County of Maui, art. 8, ch. 3.

The Hawaiʻi County Charter directs the county prosecuting

attorney to prosecute state law and county ordinance offenses on

behalf of “the people.” HCC § 9-3(a)(1). The county

prosecuting attorney is mandated to “[a]ttend all courts in the

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county” and prosecutes state law offenses “under the authority

of the attorney general of the State.” HCC § 9-3(a)(1)-(2).

County prosecutors serve their counties. Other than Maui,

Hawaiʻi’s people elect their local prosecutor. See Maui County

Charter § 8-3.2. A candidate for Hawaiʻi County prosecutor must

be “a duly qualified elector of the county for at least one year

immediately preceding the election.” HCC § 9-2. The Hawaiʻi

County Charter places the power to appoint (by election) and

impeach or recall (by signed petition) the prosecuting attorney

with the county’s voters, not statewide voters. See HCC §§ 9-1,

9-6. And though a state circuit court holds an impeachment

trial, this procedure applies to the mayor too, not exactly a

state official. See HCC § 12-2.1. As for compensation, the

Hawaiʻi prosecuting attorney’s salary is set by a “salary

commission . . . appointed by the mayor.” See HCC § 13-28; cf.

McMillian, 520 U.S. at 791 (holding that a county does not

“control” an officer it pays if it does not have the authority

to change his salary).

Against this backdrop, Amemiya explains how prosecutorial

power is distributed between the state and the counties.

V. Amemiya’s framework confers primary prosecutorial power to county prosecutors

This court has a case that squarely addresses the division

of prosecutorial power between the state and its counties.

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Amemiya, 63 Haw. at 425, 629 P.2d at ll28. Per Amemiya, the

degree of control exercised by Hawaiʻi’s Attorney General over

county prosecutors is slight.

The county argues that the Hawaiʻi Constitution and case law

allow the attorney general to control county prosecuting

attorneys. It also maintains that though the Hawaiʻi County

Charter delegates duties to its county prosecutor, this

authority is inferior to the authority of the state attorney

general. The county believes that Amemiya reconciled provisions

of state law that attribute power to both state and county

offices. Per Amemiya, the state controls county prosecutions,

insists the county.

Not so. Amemiya’s message is unmistakable. True, it

acknowledged the attorney general as the state’s chief law

enforcement officer. Id. at 427, 629 P.2d at 1129. But it also

understood that the Honolulu County prosecutor “has been

delegated the primary authority and responsibility for

initiating and conducting criminal prosecutions within [their]

county jurisdiction.” See id. at 427, 629 P.2d at 1129

(emphasis added).

Given the AG’s “ultimate responsibility” to enforce penal

laws, Amemiya carefully balanced that authority with the

prosecutorial power granted to a county. Id. This court

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concluded that the state attorney general retains “residual

authority to act.” Id. That power allows the AG to “supersede”

the public prosecutor and intercede in “compelling

circumstances.” Id. at 427-28, 629 P.2d at 1129.

The AG’s residual authority may only be invoked where it is

“clearly apparent that compelling public interests require the

attorney general’s intervention in the particular matter.” Id.

at 428, 629 P.2d at 1129. For instance, “where the public

prosecutor has refused to act and such refusal amounts to a

serious dereliction of duty on [their] part, or where, in the

unusual case, it would be highly improper for the public

prosecutor and [their] deputies to act.” Id.

The attorney general’s limited ability to supersede a

county prosecuting attorney’s authority in compelling

circumstances does not equate to “control.” Amemiya dispatches

a contrary view:

The phrase “under the authority of the attorney general” is a recognition of [their] status as the State’s chief law enforcement officer and cannot sensibly be construed as a reservation of power to usurp, at [their] sole discretion, the functions of the public prosecutor. Any other view would lead to potentially absurd and chaotic results.

Id. at 427, 629 P.2d at 1129 (emphasis added).

The Attorney General takes no position in her amicus brief

about the certified question’s answer. But she urges this court

to retain the “workable, flexible, and effective” balance that

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Amemiya struck between the attorney general’s office and county

prosecutors.

We do. Amemiya’s division of prosecutorial power endures.

We hold that county prosecutors act on behalf of the county –

not the state - when preparing to prosecute or prosecuting

offenses.

The county maintains that “the [attorney general’s]

residual authority to act means the attorney general as the

State’s chief law enforcement officer may supersede the

prosecuting attorney’s powers in certain compelling

circumstances.” But the narrow circumstances to support the

Hawaiʻi attorney general’s authority to sideline a county

prosecutor, show the lack of “control” the state has over county

prosecutors. See McMillian, 520 U.S. at 786 (holding that the

“actual function” inquiry requires definition of the official’s

functions under relevant state law).

The Attorney General relates that historically her office

has almost never tried to supersede county prosecuting

attorneys. Amemiya is the only time this court has addressed

the issue of the attorney general displacing a county

prosecutor’s control over prosecutions within the county.

The Department of the Attorney General neither prosecutes

nor oversees most criminal prosecutions in Hawaiʻi. The county

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prosecutors do. The Attorney General reports that an

“overwhelming majority of these cases were brought by county

prosecutors with no direct oversight or participation by the

Department of the Attorney General.”

What about the title of a criminal case, the county

grumbles. In Hawaiʻi, criminal prosecutions are captioned State

v. Defendant. But this convention doesn’t recast a county

prosecutor as a state prosecutor. Control matters.

The county’s argument that the state may control the county

prosecutor in certain circumstances does not approach “direct

control.” See McMillian, 520 U.S. at 791; Weiner, 210 F.3d at

1030. The state attorney general only steps in under compelling

circumstances, like when there’s a “serious dereliction of

duty.” Amemiya, 63 Haw. at 428, 629 P.2d at 1129. Refusal to

act may constitute a dereliction of duty. Id. While AG

“usurpation” is possible, there is no “direct control” over day-

to-day prosecutions such that county prosecuting attorneys are

considered state officials. Cf. McMillian, 520 U.S. at 791;

Weiner, 210 F.3d at 1030.

Next, this court has previously held in the state tort law

vicarious liability context that county prosecutors are county

officials. See Orso v. City & Cnty. of Honolulu, 56 Haw. 241,

248, 534 P.2d 489, 493 (1975) (holding under the doctrine of

respondeat superior that a “prosecuting attorney is an officer

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of the executive branch of the [county]”). We understand -

state court vicarious liability claims are different than

federal civil rights claims, and vicarious liability theories

are inapplicable to § 1983 actions. See Monell, 436 U.S. at 691

(holding that a local government may not be sued under a theory

of vicarious liability for injuries inflicted solely by its

employees or agents). But our state law analysis does not alter

simply because the present case involves a federal civil rights

claim. A plaintiff pleading a § 1983 action does not transform

county prosecutors into officers of the state. The distinction

between state tort law and § 1983 governs the standard by which

liability may ultimately attach to a local government. Yet it

does not change the constitutional and statutory role of county

prosecutors under Hawaiʻi law.

Therefore, Orso’s conclusion that county prosecutors are

county officers, further supports our holding that county

prosecutors act on behalf of the county when preparing to

prosecute and/or prosecuting state law offenses.

VI. We decline to extend state sovereign immunity to county prosecutors

We decline to extend state sovereign immunity to county

prosecutors. County prosecutors are not state officials when

initiating or conducting prosecutions for state law crimes.

Rather, county prosecutors are suable section 1983 persons. The

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state’s Eleventh Amendment sovereign immunity does not extend to

the county and its prosecutors. To hold otherwise would unduly

narrow federal civil rights actions in Hawaiʻi.

42 U.S.C. § 1983 involves a federal claim. But state law

can determine its scope. McMillian, 520 U.S. at 786, 794. As

the district court explained in its certification order, state

law decides whether an official’s “actual function” renders them

a state or county official. Id. at 791. This case’s “state or

county” outcome directly impacts the extent of section 1983

claims brought in our state’s federal court. See id.

Do county prosecutors in their official capacities enjoy

sovereign immunity’s cover? Our answer to the certified

question answers that question in real time.

The district court requests our interpretation of state

law. Because our analysis directly impacts the reach of federal

civil rights actions in Hawaiʻi, we decline to artificially

untether our holding from its effects.

This court, as the concurrence observes, applies federal

law when plaintiffs raise section 1983 claims in state court.

Gordon v. Maesaka-Hirata, 143 Hawaiʻi 335, 354, 431 P.3d 708, 727

(2018) (circuit court failed to apply the federal “clearly

established” test when it ruled that a prison official had

qualified immunity because she did not know she was violating an

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inmate’s constitutional rights); Brown v. Thompson, 91 Hawaiʻi 1,

14-16, 979 P.2d 586, 599-601 (1999) (due process rights violated

by state officials in their individual capacities were not

“clearly established,” so the officials enjoyed qualified

immunity). Those cases applied federally-established section

1983 qualified immunity because “[f]ederal law dictates the

characterization of claims brought under § 1983.” Id. at 14,

979 P.2d at 599.

A discussion of qualified immunity’s development and impact

does not undercut our state courts’ “recognition and

application” of federal law in section 1983 claims.

Here, our state law holding intersects with the federal law

application. Thus, we examine not only our state and county

frameworks, but also the historic context and Reconstruction Era

injustices that impelled Congress to create this civil rights

action. Section 1983’s origin and purpose directly relate to

the question of scope that we necessarily decide.

42 U.S.C. § 1983’s purpose guides us.

“After the Civil War, white supremacists unleashed waves of

terrorism across the South.” Green v. Thomas, 734 F. Supp. 3d

532, 543 (S.D. Miss. 2024) (citing Eric Foner, Reconstruction:

America’s Unfinished Revolution 1863-1877 (1988); Nicholas

Lemann, Redemption: The Last Battle of the Civil War (2006)).

“[M]en were murdered, houses were burned, women were outraged,

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men were scouraged, and officers of the law shot down; and the

State made no successful effort to bring the guilty to

punishment or afford protection or redress to the outraged and

innocent.” Monroe v. Pape, 365 U.S. 167, 175 (1961) (citing

Cong. Globe, 42d Cong., 1st Sess., 428 (1871)).

Local and state government officials failed to protect new

citizens and those who supported them from lawlessness and

violence. The nation needed “to provide a remedy for the wrongs

being perpetrated’ on Black folk.” Green, 734 F. Supp. 3d at

543 (citing Pierson v. Ray, 386 U.S. 547, 559 (1967) (J.

Douglas, dissenting)).

Congress acted. “In early 1871, a Senate Select Committee

produced and distributed a Report that ran hundreds of pages and

recounted pervasive state-sanctioned lawlessness and violence

against the freedmen and their White Republican allies.” Health

& Hosp. Corp. of Marion Cnty. v. Talevski, 599 U.S. 166, 176

(2023) (quoting Monroe, 365 U.S. at 174 (citing S. Rep. No. 1,

42d Cong., 1st. Sess. (1871)). As one Congressman put it,

“Sheriffs, having eyes to see, see not; judges, having ears to

hear, hear not; witnesses conceal the truth or falsify it; grand

and petit juries act as if they might be accomplices . . . .

[A]ll the apparatus and machinery of civil government, all the

processes of justice, skulk away as if government and justice

were crimes and feared detection. Among the most dangerous

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things an injured party can do is to appeal to justice.”

Talevski, 599 U.S. at 176 n.4 (quoting Mitchum v. Foster, 407

U.S. 225, 241 (1972) (citing Cong. Globe, 42d Cong., 1st Sess.,

App. 78 (1871)).

During Reconstruction the playbook included malicious

prosecutions. Southern states “aggressively us[ed] civil and

criminal prosecutions to obstruct federal enforcement of civil

rights.” Margaret Z. Johns, Unsupportable and Unjustified: A

Critique of Absolute Prosecutorial Immunity, 80 Fordham L. Rev.

509, 522-23 (2011). Prosecutors targeted formerly enslaved

human beings, Republicans, and Union supporters. Id. at 523.

Also, “anti-Reconstruction campaigns included state-sanctioned

criminal prosecutions of Union officers and federal officials

for attempting to enforce federal laws.” Id.

To remedy state led and endorsed lawlessness, Congress

passed the Ku Klux Klan Act of 1871. 42 U.S.C. § 1983

“contemplated direct federal intervention in what had been

considered to be state affairs” and allowed federal courts to

“enforce newly created federal constitutional rights against

state officials through civil remedies and criminal sanctions.”

Green, 734 F. Supp. 3d at 544 (quoting Katherine A. Macfarlane,

Accelerated Civil Rights Settlements in the Shadow of Section

1983, 2018 Utah L. Rev. 639, 660 (2018). “The very purpose of

§ 1983 was to interpose the federal courts between the States

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and the people, as guardians of the people’s federal rights — to

protect the people from unconstitutional action under color of

state law, ‘whether that action be executive, legislative, or

judicial.’” Mitchum, 407 U.S. at 242 (citing Ex Parte

Commonwealth of Virginia, 100 U.S. 339, 346 (1879) (holding that

§ 1983 “expressly authorizes” federal injunctions of state

proceedings because of its historic legislative purpose to guard

every person’s federal constitutional rights).

Section 1983’s goals guide us. Its historic and legal

roots animate our state law considerations.

The answer to the district court’s certified question

affects the scope of federal civil rights claims in our state.

We believe Hawaiʻi law advances section 1983’s promised path to

redress for constitutional rights deprivations at the local

level. The county and county officials are not sheltered from

consequences – like the state - when civil rights are violated.

Amemiya considered the power divide between state and

county prosecuting entities. In Amemiya, the attorney general

asked to supersede the county prosecutor, but only in compelling

circumstances. Amemiya, 63 Haw. at 427-28, 629 P.2d at 1129

(“With admirable restraint, [the AG] asks only that it be

determined that in certain compelling circumstances [the AG] is

empowered to intercede.”). So Hawaiʻi’s counties – with the

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attorney general’s blessing – kept the core prosecutorial

powers: “primary authority and responsibility for initiating and

conducting criminal prosecutions.” See id.

A county drives prosecutions within its boundaries. Only

“compelling circumstances” justify state intrusion.

Because we hold that county prosecuting attorneys and their

deputies are county officials under state law, we fulfill

section 1983’s intent - to ensure federal protection of

constitutional rights at the local government level.

Our decision does not create new county liability, as the

county believes. Rather, it rejects new protections for the

county. Congress expressly intended that local municipalities

are “persons” under § 1983. See Monell, 436 U.S. at 700-01.

Still, a local municipality is only liable under § 1983 if an

official’s actions furthered the government’s unconstitutional

policy or custom. Id. at 690. A county isn’t liable for free-

lanced, non-policy acts by its employees or agents. Id. at 694.

Thus, while the county is exposed to section 1983 litigation

because it lacks state sovereign immunity, its liability is more

constrained than the county lets on. See id.

The county also worries that it faces increased section

1983 litigation if we rule that county prosecutors are county

officials; it says, “sovereign immunity and absolute and

qualified immunities defenses would not be available.” The

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county says that we should answer the certified question “the

state,” because without these immunities, it would defend more

suits. So we examine absolute and qualified immunities within

the section 1983 context.

The concurrence misreads our discussion of absolute and

qualified immunity. This court does not “reformulate” the

certified question or coach the federal court’s independent call

on the defendants’ individual capacity defenses. Nor do we

place a “thumb on the scale” for future federal qualified

immunity cases in our federal district court. (Federal courts

rely on federal precedent to decide federal civil rights

claims.)

The county raised concerns that our answer to the certified

question impacts available immunities for county prosecutors.

Because the county conflates individual and official capacity

immunities, we clarify how these immunities fit into the section

1983 framework. We also highlight the strength of these federal

protections.

Once more, our decision directly impacts 42 U.S.C. § 1983

actions against Hawaiʻi’s county prosecutors. As asked, we

answer a state law question. In doing so, we must consider the

answer’s natural effects.

Today counties and county prosecutors enjoy generous

protection in federal court. The county itself faces only

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limited potential liability under § 1983. Its officials must

act based on policy or customs that violate constitutional

rights. Monell, 436 U.S. at 690. Also, judicially-fashioned

immunity still shields county prosecutors and their deputies in

their individual capacities. Imbler v. Pachtman, 424 U.S. 409,

420 (1976) (prosecutors enjoy “absolute immunity from § 1983

suits for damages when [they] act[] within the scope of [their]

prosecutorial duties”); Van de Kamp v. Goldstein, 555 U.S. 335,

343 (2009) (absolute immunity from § 1983 liability attaches

“when a prosecutor prepares to initiate a judicial proceeding”

or “appears in court to present evidence in support of a search

warrant application”).

There’s more, immunity-wise, to aid prosecutors. Where

absolute immunity does not apply, prosecutors still have

qualified immunity.

Nearly 100 years after its words became law, the Supreme

Court slid qualified immunity into § 1983 as a “good faith and

probable cause” defense. See Pierson, 386 U.S. at 554-57

(asserting that the “good faith and probable cause” defense

existed under the common law when Congress enacted § 1983, and

supposing that Congress would have expressly barred the doctrine

had it wanted to).

Some say that there is no legal basis for qualified

immunity. See, e.g., William Baude, Is Qualified Immunity

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Unlawful?, 106 Calif. L. Rev. 45, 55-61 (2018). “There was no

well-established, good-faith defense in suits about

constitutional violations when Section 1983 was enacted, nor in

Section 1983 suits early after its enactment.” Before the Civil

War, “suits for damages against government officials were not

litigated directly as constitutional torts.” Id. at 51.

Instead, Constitutional claims were litigated as common-law

torts, where constitutionality only arose in response to a

government official’s defense. See id. at 51-52. Section 1983

thus created a direct cause of action (and a new framework) for

constitutional violations, raising “questions about how the new

constitutional claims related to the old common-law claims, and

whether the common law had any role to play in the new

constitutional suits.” Id. at 52.

Soon the Supreme Court strayed from 1871’s putative common

law. The Court grafted new features to section 1983 “untethered

from any statutory or historical baseline.” S. Rafe Foreman,

Qualified Immunity: A Legal Fiction That Has Outlived Utility,

48 Ohio N.U. L. Rev. 503, 519 (2022). The good faith test

evolved to a clearly-established-law test. Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). The Court displaced the

common law’s subjective test with an objective one. Good faith

was out. And because bad faith no longer mattered, it was in.

Mullenix v. Luna, 577 U.S. 7, 26 (2015) (Sotomayor, J.,

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dissenting) (“[A]n officer's actual intentions are irrelevant to

the Fourth Amendment’s ‘objectively reasonable’ inquiry.”).

Qualified immunity whitewashes civil rights deprivations by

excusing bad-acting officials from liability so long as their

conduct does not offend a clearly established right. “A cynic

might say that with qualified immunity, government agents are at

liberty to violate your constitutional rights as long as they do

so in a novel way.” Green, 734 F. Supp. 3d at 540; Malley v.

Briggs, 475 U.S. 335, 341 (1986) (“As the qualified immunity

defense has evolved, it provides ample protection to all but the

plainly incompetent or those who knowingly violate the law.”);

Kisela v. Hughes, 584 U.S. 100, 121 (2018) (Sotomayor, J.,

dissenting) (“[The Court’s] one-sided approach to qualified

immunity . . . tells the public that palpably unreasonable

conduct will go unpunished.”).

The Court’s policy swing (with little thought to the

policies that inspired § 1983) means that “[i]mportant

constitutional questions go unanswered precisely because no

one’s answered them before. Courts then rely on that judicial

silence to conclude there’s no equivalent case on the books. No

precedent = no clearly established law = no liability.” Zadeh

v. Robinson, 928 F.3d 457, 479-80 (5th Cir. 2019) (Willett, J.,

concurring in part and dissenting in part).

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What about absolute immunity? Hawaiʻi has never endorsed

absolute immunity for prosecutors outside of section 1983

claims. See, e.g., Leong Yau v. Carden, 23 Haw. 362, 368 (Haw.

Terr. 1916) (“Public prosecuting officers are entitled to

protection against claims growing out of the discharge of their

duties done in good faith though with erroneous judgment”);

Orso, 56 Haw. at 247, 534 P.2d at 493 (absolute immunity does

not apply to a prosecuting attorney for state torts).

Reconstruction Era common law also did not confer

prosecutors with absolute immunity. See, e.g., Scott A. Keller,

Qualified and Absolute Immunity at Common Law, 73 Stan. L. Rev.

1337, 1366-67 (2021). Not until 25 years after Congress

provided a direct damages action against government officials to

remedy constitutional rights did a court first say that

prosecutors’ unlawful acts are absolved by absolute immunity.

See Griffith v. Slinkard, 44 N.E. 1001 (Ind. 1896).

We decline to expand state sovereign immunity for section

1983 claims to include county prosecutors. We hold that county

prosecuting attorneys and their deputies act on behalf of their

respective counties when preparing to prosecute or prosecuting

criminal violations of state law.

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A county Prosecuting Attorney and/or Deputy Prosecuting

Attorney acts on behalf of the county when preparing to

prosecute and/or prosecuting criminal violations of state law.

Carl H. Osaki /s/ Mark E. Recktenwald for appellant /s/ Sabrina S. McKenna Ryan K. Thomas /s/ Todd W. Eddins for appellees /s/ Vladimir P. Devens Thomas J. Hughes for amicus curiae Attorney General of the State of Hawaiʻi