County Prosecutorial Authority under § 1983: Hawaiʻi Supreme Court Clarifies County vs. State Control

Introduction

In McGuire v. County of Hawaiʻi, 2025 WL XXXX (Haw. 2025), the Hawaiʻi Supreme Court answered a certified question from the U.S. District Court for the District of Hawaiʻi: when a county Prosecuting Attorney or Deputy Prosecuting Attorney prepares for or prosecutes crimes under state law, do they act on behalf of the county or the state? This issue arose in the context of a 42 U.S.C. § 1983 suit brought by Pueo Kai McGuire, who alleged that malicious prosecution actions by county prosecutors deprived him of his constitutional rights. The question turned on Hawaiʻi’s allocation of prosecutorial power, federalism principles, and the Eleventh Amendment’s sovereign‐immunity rule.

Plaintiff‐Appellant McGuire sued the County of Hawaiʻi and individual prosecutors (Mitchell D. Roth, Kelden Waltjen, Kate Perazich, and Sylvia Wan) in both their official and individual capacities. The core legal question was whether a county prosecutor is a “person” amenable to suit under § 1983 (i.e., a county official) or, instead, a state officer cloaked with sovereign immunity.

Summary of the Judgment

The court unanimously held that under Hawaiʻi law, county Prosecuting Attorneys and their deputies “act on behalf of the county” when preparing or prosecuting state law offenses. In reaching that conclusion, the court:

Applied the two-part test from McMillian v. Monroe County (520 U.S. 781 (1997))—final policymaking authority and actual function—to ascertain whether prosecutorial duties fall under state or county control;
Surveyed Hawaii’s constitutional provisions, statutes (HRS §§ 26-7, 28-1, 28-2, 46-1.5), county charters, and historical evolution of prosecutorial offices (from the Kamehameha III era through the Territory period and post-statehood changes);
Emphasized Amemiya v. Sapienza (63 Haw. 424 (1981)), which allocated “primary authority” to county prosecutors and limited the Attorney General’s right to “supersede” only in “compelling circumstances”; and
Confirmed that counties and county prosecutors are not shielded by state sovereign immunity in § 1983 actions, although federal absolute and qualified immunities remain available to individuals in their personal capacities.

Analysis

Precedents Cited

42 U.S.C. § 1983 – Provides a civil remedy against “every person” acting under color of state law who deprives others of constitutional rights; state actors in official capacity are not “persons,” but municipalities are.
Monell v. Department of Social Services, 436 U.S. 658 (1978) – Municipalities are “persons” under § 1983; local government liability requires an unconstitutional policy, custom, or final policymaker action.
McMillian v. Monroe County, 520 U.S. 781 (1997) – Introduces a two-part test (final policymaker authority & actual function/control) to decide if an official’s conduct binds the local government.
Weiner v. San Diego County, 210 F.3d 1025 (9th Cir. 2000) – Applying McMillian, held California district attorneys are state, not county, officers based on California’s “direct supervision” by the Attorney General.
Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) – Whether an official had final policymaking authority is a question of state law.
Orso v. City & County of Honolulu, 56 Haw. 241 (1975) – Under state tort law, county prosecutors are considered county officials for respondeat superior purposes.
Amemiya v. Sapienza, 63 Haw. 424 (1981) – Recognizes county prosecutors’ “primary authority” to prosecute, with only narrow, “compelling circumstances” for state intervention.
Imbler v. Pachtman, 424 U.S. 409 (1976), and Van de Kamp v. Goldstein, 555 U.S. 335 (2009) – Establish absolute immunity for prosecutors acting in prosecutorial functions.
Harlow v. Fitzgerald, 457 U.S. 800 (1982) – Transforms § 1983’s good-faith defense into the modern “qualified immunity” standard requiring “clearly established” law.

Legal Reasoning

The Supreme Court’s analysis centered on the McMillian “actual function” inquiry, which depends entirely on state law. The key steps in its reasoning were:

Final policymaker authority: Both parties agreed that county Prosecuting Attorneys possess final authority to decide whether to prosecute under Hawaiʻi law. This satisfied McMillian’s first prong.
Actual function/control test: Under McMillian, this prong looks at the entity that “controls” the official’s day-to-day functions. The court rejected reliance on indirect controls—such as salary setting, funding, or nominal statutory labels—and instead examined:
- Hawaiʻi’s constitutional “home rule” (art. VIII, § 2) empowering counties to adopt charters and delegate prosecutorial duties;
- HRS § 46-1.5(17), authorizing counties to prosecute state offenses “under the authority of the attorney general” but without conferring state control;
- County charters (Hawaiʻi County, Honolulu, Maui, Kauaʻi), which vest prosecutorial duties in locally elected or appointed officials, subject only to county electoral and removal processes;
- HRS §§ 26-7, 28-1, and 28-2 defining the Attorney General’s role as “chief legal officer” with broad civil functions and limited criminal prosecutorial duties, explicitly reserving prosecutorial authority “unless otherwise provided by law.”
Historical context: From the Kingdom era through the Territorial period, prosecutorial power migrated from a centralized Attorney General to locally appointed/publicly elected county prosecutors. Notably, the 1932 Act responding to the “Massie Affair” created a Honolulu Prosecuting Attorney “under the control and direction of the attorney general,” but in 1957 the Territory revoked that subordination, and post‐statehood statutes continued to treat county prosecutors as independent.
Amemiya’s residual authority doctrine: In 1981, this court held that while the State Attorney General retains a narrow right to supersede a county prosecutor in “compelling circumstances”—e.g., a serious dereliction of duty or a conflict of interest—that exceptional power does not equate to routine “control.” Any broader reading, the court warned, would invite “absurd and chaotic results.”

Impact

This ruling carries significant practical and doctrinal consequences:

Federal civil rights litigation in Hawaiʻi: Defendants may no longer invoke state sovereign immunity to shield county prosecutorial offices from § 1983 suits. County governments and their prosecutors (in official capacity) are “persons” under § 1983 and can be sued for municipal liability.
Local accountability: Counties remain directly responsible for prosecutorial conduct. Victims of constitutional deprivations have a clear path to redress against county officials without state‐level immunity barriers.
Limits on state intervention: The decision affirms Hawaiʻi’s tradition of home‐rule, delineating the Attorney General’s residual power as narrowly confined to extraordinary cases, thereby preventing routine state micromanagement of local prosecutions.
Guidance for lower courts: Federal courts in Hawaiʻi must apply this state‐law holding when determining municipal liability in § 1983 actions involving prosecutors. They must focus on the Hawaiʻi constitutional and statutory framework rather than analogies to California or other jurisdictions.
County governance: Counties may revisit charter provisions, election or appointment processes, and local oversight mechanisms to ensure prosecutorial accountability and to anticipate potential increases in § 1983 litigation.

Complex Concepts Simplified

42 U.S.C. § 1983: A federal statute, enacted during Reconstruction, enabling individuals to sue any “person” who, under color of state law, deprives them of constitutional rights.
Sovereign immunity (Eleventh Amendment): Bars most lawsuits against states in federal court unless the state consents or Congress validly abrogates that immunity. Municipalities are not protected.
Municipal liability (Monell Doctrine): Local governments can be sued under § 1983, but only when the violation results from a policy, custom, or final policymaker decision.
Final policymaker authority: The entity’s or official’s power to make binding policy decisions in a particular realm—an essential predicate for municipal liability under McMillian.
Actual function/control test: Examines which level of government—state or county—exercises real, day-to-day control over an official’s decisions and actions.
Absolute vs. qualified immunity: Prosecutors enjoy absolute immunity for prosecutorial acts (Imbler/Van de Kamp), and, where absolute immunity does not apply, may still claim qualified immunity when the right at issue was not “clearly established” at the time of the alleged violation (Harlow).

Conclusion

McGuire v. County of Hawaiʻi establishes a clear, state‐law rule: county Prosecuting Attorneys and their deputies are county officials when initiating and conducting prosecutions of state law offenses. This decision reaffirms Hawaiʻi’s home‐rule tradition, respects the statutory and charter framework that vests primary prosecutorial power in counties, and preserves only a narrow, emergency‐only right of the Attorney General to supersede. As a result, county governments and their prosecutors (in official capacities) are “persons” under § 1983, suable without state sovereign immunity. At the same time, federal absolute and qualified immunities remain available to individuals sued in their personal capacities.

In the broader legal context, this ruling promotes local accountability for civil‐rights violations, offers clear guidance to federal and state courts applying the municipal liability test, and underscores the continuing importance of federal civil rights statutes in policing local government conduct.