Aerial ads case raises question of jury trials

Whether the aerial advertising company and pilot cited for flying banners over Oahu are entitled to jury trials will be argued before a state circuit judge Monday.

Victor Bakke, attorney for Aerial Banners Inc., and pilot Matthew Radeck want jury trials. Prosecutor Keith Kaneshiro wants the cases sent back to District Court, a motion to be heard by acting Circuit Judge Lono Lee on Monday.

Both Aerial Banners and Radeck are each charged with twice violating the city prohibition against aerial advertising, on July 3 and July 21.

In a court memorandum, prosecutors argue the cases are not "grave"offenses since they are punishable by a fine of only $25 to $500 and/or up to three months in jail.

But Bakke argues while state law is clear that misdemeanor defendants are entitled to jury trials and petty misdemeanors are not, his clients are accused of violating a city ordinance that is not defined as either a misdemeanor or petty misdemeanor.

Misdemeanors are typically punishable by up to a year imprisonment while petty misdemeanors carry a maximum sentence of 30 days, Bakke said. The severity of the possible punishments dictates that the cases should be full misdemeanors, Bakke argued in his motion.

If found guilty of both offenses, Radeck could be sent to jail for a maximum of six months while the penalty against Aerial Banners could ultimately deny the company from operating in the state, he said.

What’s more, Mayor Kirk Caldwell and the city have sought to portray violating the aerial advertising prohibition as "a constitutionally serious offense,"making it "disingenuous" for prosecutors to now argue that it is not, Bakke said.

Kaneshiro, in a memo supporting moving the cases back to District Court, said the maximum imprisonment time "falls far short of a year" and therefore does not meet the definition of a full misdemeanor. The cases also do not meet three standard factors, including severity, used historically by the Hawaii Supreme Court to determine if defendants were entitled to a jury trial.

For instance, the law was enacted "with Honolulu’s economic well-being in mind rather than public safety, in order to protect Honolulu’s tourist appeal rather than its citizens,"Kaneshiro said.

The cases were set for trial the week of Oct. 27 but were stalled by the prosecutors’ move to remand them back to District Court.

Aerial Banners and Radeck contend that the company does not need to follow city ordinances because it has a waiver from the Federal Aviation Administration that trumps local laws. An FAA administrator, however, has since told city officials that the waiver does not allow the company to skirt local jurisdiction.