A state judge on Wednesday refrained from sanctioning a Honolulu city attorney who used a fictional legal citation in an attempt to persuade the judge to prevent a jury from hearing a high-profile civil rights case against the city.

Instead, Hawaiʻi Circuit Court Judge Karin Holma issued a warning.

“Don’t do it again,” Holma told Honolulu Deputy Corporation Counsel David Sgan, who had based the city’s legal argument on fictional law.

But Holma stopped short of fully addressing what she called “the big elephant in the room.” 

The American Civil Liberties Union, which brought the suit accusing police of repeatedly arresting sober drivers for driving drunk, alleged in court documents that Sgan drafted his brief using artificial intelligence, which created the city’s fictional case law.

Honolulu Corporation Counsel Dana Viola denied that the city used AI, attributing the problem to a “drafting error.”

Holma didn’t question Sgan about the elephant in the room. Instead, she said the state judiciary takes seriously the issue of lawyers submitting briefs containing so-called “AI hallucinations.”

“I’m not going to sanction you today,” she told Sgan. But she told Sgan to deliver a message to his colleagues in the city’s legal office: if they submit briefs with fake citations produced by AI, “I will sanction them.”

According to the Hawaiʻi Rules of Civil Procedure, courts have a range of options concerning sanctions to deter lawyers from engaging in similar conduct. These include requiring a penalty to the court or payment of opposing counsel’s legal fees incurred as a result of the violation. In this case, for instance, Holma could require the city to cover the ACLU’s fees for the time its lawyers spent trying to find a case that doesn’t exist.

The legal director of ACLU Hawaiʻi, Wookie Kim, declined to comment after the hearing. Sgan referred questions to Viola.

Suit Alleges Police Misconduct In DUI Arrests

In its class action suit against the city and former Honolulu Police Chief Joe Logan, the ACLU outlines an alleged pattern of Honolulu police officers stopping and arresting sober drivers.

“HPD officers continually arrest drivers who show no outward signs of impairment, perform well on field sobriety tests, and who often blow 0.000 on breathalyzer tests,” the suit says. “From 2022 through 2024, HPD arrested 127 people who had a blood alcohol content (“BAC”) of 0.000 after a breath or blood test.”

Part of the officers’ motivation, the suit argues, is a “one-and-done” policy that lets night-shift officers quit work early but still get paid for a full overnight shift once they have made a DUI arrest.

Holma must still decide whether to hold a jury trial as requested by the ACLU.

The city in June filed a motion asking Holma to strike that request. The city based much of its argument on a case titled “Chun v. Bd. of Trs. of Employees’ Ret. Sys. of State” and included a citation purporting to show the law books where the judge and ACLU lawyers could read the Chun decision for themselves. The brief supposedly pinpointed page numbers in Chun supporting the city’s position.

The ACLU says the citation was fictional, and Sgan has admitted it. 

“It’s just sloppy, lazy lawyering all the way around.”

Hawaiʻi Circuit Court Judge Karin Holman

In a brief filed earlier this month, the ACLU alleged that the city’s citation referred to a completely different case. And while several Hawaiʻi cases are titled “Chun v. Bd. of Trs. of Employees’ Ret. Sys. of State,” the ACLU said, none has anything to do with a party’s right to a jury trial.

“This Court could deny the City’s Motion for a simple reason: It is not based on real law,” the ACLU wrote. “The primary case relied on by the City does not exist and appears to have been generated by an artificial intelligence (‘AI’) tool.”

 It added, “the City’s entire argument relies on a non-existent rule of law.”

In a reply brief, Sgan apologized to Holma and the ACLU’s lawyers “for the inaccurate and untethered citations to the Chun decision.” He admitted that the city’s legal arguments were “not supportable by Chun.”

Viola in a statement said the legal arguments made by the city in its first brief are supported by other cases cited in the reply brief. The reply raises additional jurisdictional issues not raised in the city’s first brief. Holma has given the ACLU another opportunity to respond.

As for the city’s flawed argument, Holma said that even before AI, lawyers were known to cite fake law by simply cutting and pasting text from cases found online without checking to see if the cases had been overturned on appeal.

Whether the city’s error was caused by an AI hallucination or a drafting error, the judge said, “It’s just sloppy, lazy lawyering all the way around.”