A Hilo attorney’s federal lawsuit against Hawaii County, Mayor Mitch Roth, county Prosecutor Kelden Waltjen, Deputy Prosecutor Kate Perazich and former Deputy Prosecutor Sylvia Wan that accuses them of malicious prosecution is on hold — for now.
Hawaii U.S. District Judge Jill Otake on March 13 issued an order staying the lawsuit filed last year by Pueo Kai McGuire while she awaits an answer from the Hawaii Supreme Court regarding a defense employed by the defendants in a motion to dismiss McGuire’s suit.
The defense motion claims Roth, Waltjen, Perazich and Wan enjoyed sovereign immunity under federal law from deprivation of rights lawsuits at the time of McGuire’s claims, because when prosecuting criminal violations of state laws, county prosecutors function as state, not county, officials.
“Because this question of Hawaii law is determinative here, and because there is no clear controlling precedent in Hawaii’s judicial decisions, this court respectfully certifies the following question to the Hawaii Supreme Court: Under Hawaii 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?” Otake queried the state’s high court.
McGuire, a 36-year-old attorney in private practice, is seeking monetary damages, claiming malicious prosecution, fabrication of evidence, abuse of process, defamation of character, and intentional and negligent infliction of emotional distress.
Then a 31-year-old deputy public defender, McGuire was charged by complaint on Jan. 22, 2020, and indicted by a Hilo grand jury on Jan. 29, 2020, with first-, third- and fourth-degree sexual assault for what prosecutors alleged was an acquaintance rape of a then-27-year-old woman on Jan. 19, 2020, at McGuire’s Hilo home.
The charges were dismissed with prejudice — which means they can’t legally be refiled — on July 16, 2021, by Third Circuit Chief Judge Robert Kim. The dismissal was in response to a motion filed by Perazich on July 13, 2021. According to the motion, the request that the charges be dismissed was made “in the interests of justice.”
Among the allegations in the suit are that the complainant — the daughter of a police sergeant/detective — had consensual sex with McGuire, but lied to police and the grand jury both about the nature of the sex and about having had sex with McGuire the previous night, as well.
The complaint alleges a police detective interviewed the alleged victim three times and didn’t find her claims credible, but Wan advised the detective to press the sexual assault charges.
According to the suit, Wan, who is now a deputy corporation counsel, did so “to embarrass and defame” McGuire, “shame” the Office of the Public Defender, and benefit the political campaigns of Roth, then the county prosecutor and candidate for mayor, and Waltjen, then a deputy prosecutor seeking election as prosecutor.
The suit alleges Wan charged McGuire “despite the existence of credible and clearly exculpatory evidence” and that Perazich, at Roth’s direction, “prepared to mislead the grand jury by selectively omitting … clearly exculpatory evidence.”
The suit claims that as a result of McGuire’s arrest, charges and incarceration prior to posting $30,500 bail on Jan. 22, 2020, he has suffered emotional, physical, societal and economic damages including humiliation, severe emotional distress and death threats.
Email John Burnett at jburnett@hawaiitribune-herald.com.
