The Hawaii Supreme Court has agreed to hear a case challenging the Honolulu Police Commission’s decision that it was legally obligated to pay attorneys fees for former Police Chief Louis Kealoha’s after he was charged for his role framing his wife’s uncle on bogus charges of stealing the chief’s mailbox, and lying as part of the subsequent coverup.

The police commission, following a contested case hearing, granted Kealoha’s request for attorneys fees in the mailbox case, but denied a second request stemming from additional financial fraud charges involving only the chief and his wife.

By this time, the federal trial was already underway, and the city appealed the commission ruling. The circuit court upheld the commission’s decision, and the city appealed again, this time to the Intermediate Court of Appeals, which again upheld the commission’s decision.

The city appealed once again, this time to the Supreme Court. The Police Commission responded, urging the court to deny the city’s petition. But on Monday, the Supreme Court agreed to hear the case.

The case rests on the interpretation of Section 52D-8, Hawaii Revised Statutes.

[§52D-8] Police officers; counsel for. Whenever a police officer is prosecuted for a crime or sued in a civil action for acts done in the performance of the officer’s duty as a police officer, the police officer shall be represented and defended:
(1) In criminal proceedings by an attorney to be employed and paid by the county in which the officer is serving; and
(2) In civil cases by the corporation counsel or county attorney of the county in which the police officer is serving. [L 1989, c 136, pt of §2]

The city’s position is summed up this way:

The overarching question Petitioner City and County of Honolulu asks this Court to consider is this:

When the chief of police is indicted for conspiring and carrying out a scheme to frame a family member for a non-existent crime, is he being prosecuted for acts done in the performance of his duty as a police officer?

The answer is obviously “no.” Framing someone for a crime they did not commit to further one’s own interests is not an act done by the chief in the performance of his duty as a police officer.

But the Police Commission responded that the Intermediate Court made the right call.

The ICA also recognized that HRS § 52D-8 requires the City to provide legal counsel to police officers when prosecuted in a criminal case for actions that police officers are required to do. Petitioner argues that the interpretation of HRS § 52D-8 should be limited to only actions whereby the officer’s clear intent is to benefit the employer and the scope of employment test should be applied to determination of requests for legal counsel. Petition at 8-9. However, HRS § 52D-8 does not require the Commission to consider the officer’s intent.

The legislative history of HRS § 52D-8 supports this result. When the initial bill was introduced in 1941, the Senate stated, “in view of the increasing number of charges, both civil and criminal, brought against police officers, your committee feels that such provision [of legal representation] must be made if the morale of the force is to be maintained.”
Sen. Stand. Comm. Rep. No. 376 on H.B. 247, in 1941
Senate Journal at 860-61

…It is inconceivable that allegations of a crime by a police officer, or even a civil complaint that alleges misdeeds of a police officer, would include an intent by the officer to serve his employer, the police department. Applying the scope of employment test and considering the benefit to the employer “would defeat both the plain language of HRS § 52D-8 and the legislative intent to maintain the morale of the police force.”

The schedule for oral arguments in the case has not been set.
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