Posted on: Friday, November 1, 2002

Felony trial option remains on ballot

By James Gonser
Advertiser Staff Writer

The proposed constitutional amendment that would allow prosecutors a third option in sending felony cases to trial survived a court challenge by the American Civil Liberties Union yesterday, but the state must post the full text of the amendment at polling places on Election Day and publish it in the newspaper.

Circuit Court Judge Dexter Del Rosario denied the request by the ACLU of Hawai'i for a restraining order that would have effectively nullified the vote on Constitutional Amendment No. 3 in Tuesday's general election. The judge said setting aside the election results is "too extreme a remedy."

But Del Rosario granted the ACLU's request to notify voters about the complete text of the proposed amendment through newspaper advertisements and the posting of the text "prominently" at polling places throughout the state on Tuesday.

ACLU attorney Brent White said he is disappointed with the judge's decision, but is happy the text will be published and not just an abbreviated summary that he said is "filled with errors."

"The voters have no idea what the text says and the court ruled they must publish it," White said after the hearing.

"Voters should look at the amendment and decided for themselves. If they don't understand it, they shouldn't vote for it."

White said the ACLU may continue to pursue the case further depending on the outcome of the vote on the amendment proposal.

Deputy Attorney General Charleen Aina, who argued the state's case, said she was "pleased the election won't be interrupted."

The amendment, if approved by a majority of ballots cast, would allow state and county prosecutors to send a felony case to trial by information charging, a written charge with supporting affidavits submitted to a state judge. If the judge decides the evidence is strong enough, the defendant must stand trial.

Defendants are now brought to trial by either a grand jury indictment or as a result of a preliminary hearing.

The proposed constitutional amendment has drawn supporters from city Prosecutor Peter Carlisle and other law enforcement officials. Opponents include criminal defense lawyers and the ACLU.

The ACLU filed a lawsuit last week on behalf of two residents, saying the amendment proposal should be scrapped because it includes "false and misleading information about the proposed amendment and is in violation of the state and federal constitutions."

White argued that the state had not followed statutory rules requiring the full text of a proposed constitutional amendment be publish in a general circulation newspaper each of four weeks proceeding the election. He also said the state had not made the text available for voters at public libraries as required by law.

"This is not just a technical requirement," White said. "It is essential to the ratification process. Voters in Hawai'i are being deprived of the opportunity to read the amendment and make an informed decision."

White argued that the voter information text had so many errors the voters could not truly understand what the amendment said. He also asked the court to require the state to publish a notice of "misrepresentations" along with the "truth" about the amendment as written by the ACLU.

Aina countered that publishing such a notice would "wreak havoc" on the voters. She said the vote on the proposed amendment should be allowed to take place because the lawsuit could always be continued after the vote.

To nullify the election or allow people to vote and then not tabulate the results would "violate due process," Aina said.

Reach James Gonser at jgonser@honoluluadvertiser.com or 535-2431.