Court lets ACLU challenge of ballot measure proceed

By James Gonser
Advertiser Staff Writer

The Hawai'i Supreme Court ruled yesterday that a lawsuit seeking to invalidate a state constitutional amendment passed by voters Nov. 5 can move forward.

The Attorney General's office filed a motion Dec. 2 to dismiss the case brought last month by the American Civil Liberties Union of Hawai'i, saying the court lacked jurisdiction to hear the compliant. The high court unanimously disagreed.

The Supreme Court generally hears cases after they have been ruled on by a lower court, but in this case the suit was filed directly with the higher court.

"It appears that this court has subject-matter jurisdiction over this original proceeding," Associate Justice Steven Levinson wrote for the court. "Therefore, it is hereby ordered that the motion to dismiss is denied."

The ACLU now has 30 days to file an opening brief. The Attorney General then has 30 days to answer, according to the order.

ACLU executive director Vanessa Chong said the civil liberties group would move forward with its case to overturn the amendment.

Approved by 60 percent of voters in the general election, the amendment would allow prosecutors to bring criminal charges by filing a written complaint.

The lawsuit, filed on behalf of 46 registered voters, contends the state misrepresented the amendment to voters.

Background information distributed in pamphlets and through the media indicated that such a complaint would be "supported by affidavits and other documentary evidence," and that "if a judge finds probable cause based upon the written information, a warrant is issued and the case proceeds to trial."

But the amendment itself contains no information about affidavits and other steps to protect the rights of the accused, said ACLU legal director Brent White, only that prosecutors will file complaints "in accordance with procedures that the legislature may provide."

Voters did not get the complete text of the measure, White said, and were misled because they did not really know what they were voting on.