Judge in Kauai dam breach case: The court cannot be bought

EDITOR’S NOTE: This was the statement by Kauai Chief Judge Randal Valenciano Wednesday, Oct. 15, 2014, before he sentenced retired auto dealer Jimmy Pflueger to 7 months in prison on a reckless endangering charge related to the March 14, 2006 breach of his dam at Ka Loko on Kauai, which killed 7 people. Mr. Pflueger’s company, 808 Properties, took responsibility through a plea agreement for the 7 manslaughter counts originally filed against Mr. Pflueger. Saying the court cannot be bought, the judge also reduced the fine against Pacific 808 properties from $350,000 or $50,000 per person who died to $7,000 or $1,000 per person who died.

“Mr. Pflueger, can you stand. … I have had an opportunity to review all the pleadings. And Mr. Kanemoto (prosecutor), when you asked the court to take judicial notice of all the documents, the court already reviewed all of the documents. I have been involved from the case from the very beginning so no need for the court to review anything else.

“First of all, I will acknowledge that this was a tragedy. There is no way else to describe it. One of my duties and responsibilities is to impose a sentence. I understand the presentation by Mr. Pflueger was not an effort to try and escape responsibility. It was an effort to explain his role in this tragedy. The court has powers, but powers are limited. And to the families of the victims: The court does not have the power to turn back the clock. I don’t have the power to resurrect victims who perished. I can’t do that. What I can do is impose a sentence that the court believes is fair and reasonable, and is an act of imposing justice for our community.

“We have two entities that are before the court today. We have Mr. Pflueger individually, and we have Pacific 808 (Pflueger’s company).

“The court views Pacific 808 as a separate entity. But it is a business or entity controlled by the defendant. For purposes of today’s proceeding, the court is going to pierce that business entity. And the reason that I am going to pierce that business entity is I am going to find the defendant responsible and sentence him accordingly. That is consistent with his change of plea.

“In this case the court is not going to allow the business to shield Mr. Pflueger from being responsible. I am not viewing the business as the responsible party. I am viewing Mr. Pflueger as the responsible party in that Mr. Pflueger is the one who accepted ultimate responsibility. So the sentence will reflect that. That the court is not going to use the business as a way to shield Mr. Pflueger.

“I know that Mr. Pflueger deposited monies into the court system for today’s proceedings. But I am not going to use that money. And I am not going to use it in the way the state suggested. I don’t want to give the impression that this court is being bought today.

“(Mr. Pflueger) There is no question that you are a successful businessman. I have letters, numerous letters, indicating that. And there is no question that you contributed to our community. In many ways, whether it was to organizations or individuals or young individuals. So I will acknowledge that also.

“I do have concern on how you conducted your business. And I do have concern about your mindset in how you conducted your business. The court believes that your attitude was to act first, and then worry about the consequences or compliance later.

“There was a reference that Mr. (Bruce) Fehring used (in his statement about Mr. Pflueger) as (being) a bully. It is interesting because I had written that down. I didn’t write it down as a bully. I wrote it down as if you acted as if you were a business bully. And the reason I said that is because of how you conducted your business. Just because you were a successful business man doesn’t mean that you can be above the law.

“You had limited regard for the community or for societal impact. And the court believed your actions were profit oriented. The bulk of your criminal history has to do with lack of compliance. I will acknowledge that the court cannot say that this was your entire fault, so in that I agree with your attorneys. And I acknowledge that there were a number of contributing factors and multiple entities or individuals involved in this tragic event. But I will agree that you were one of the central figures in this tragedy. And that you bear some, if not a great deal, of fault. I agree with some of the recommendations made by the attorneys and I disagree with some of the recommendations that were made and agreed to as part of the plea bargain.

“In regards to Pacific 808, counts 1-7, I am not going to put you on probation, it will be a straight fine, and it will be $1,000 per count.

“In regards to (the reckless endangerment charge), I agree with the recommendation that probation is appropriate. And part of it is because of your history with the community (and) your lack of a criminal history. Yet I say that knowing that you do have felony convictions (10 previous felony convictions), but your felony convictions have to do with knowing violations and is somewhat related to what you are here for today. It is not your classic criminal history that the court is concerned about.

“I am going to put you on probation. And the probation period will be for 5 years. I know there was an issue regarding whether imprisonment was appropriate or not. Or jail time was appropriate or not. And I will tell you that jail time is appropriate.

“In regards to the conditions, you shall follow all instructions given to you by your probation officer.

“You shall be confined in jail for a period of 7 months, forthwith.

“You shall pay a $105 crime victim compensation fee, a probation services fee of $150, you shall sign a waiver of extradition, you shall submit to being registered by the adult probation services for identification purposes.

“The firearm, which is the 410 single shotgun registered to you, shall be forfeited to the Kauai Police Department. …

“Mr. Pflueger, you need to sign the terms and conditions of your probation before the sheriffs take you into custody.”

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