High court rejects ACLU's bid on amendment No. 3

By Curtis Lum
Advertiser Staff Writer

The Hawai'i Supreme Court yesterday rejected a motion by the American Civil Liberties Union to prevent the state from counting or certifying votes on constitutional amendment proposal No. 3 in today's election.

But in denying the motion for a temporary restraining order, the court kept open the ACLU's ability to take additional legal action should the amendment pass.

The ACLU of Hawai'i had argued that the ballot amendment be nullified because the state failed to comply with constitutional mandates to publish the amendment's text at least 30 days before the election. Circuit Judge Dexter Del Rosario last week denied a similar motion for a temporary restraining order.

The Supreme Court said in a 4-1 ruling that it did not have jurisdiction on the matter because Del Rosario had not made a final judgment in the case. The justices said the ACLU could continue to pursue the matter in the Circuit Court or through an election challenge with the Supreme Court following the election.

ACLU legal director Brent White said he was not disappointed with the court's ruling. He said one justice — Simeon Acoba — agreed with the ACLU's arguments, while the four others took no position on the matter.

"If the court had said we were wrong, that the state didn't have to publish the text of the amendments, then that would have been a setback. But that's not what they said," White said. "What the court said was we have two choices: to continue the case in Circuit Court or file an election contest with the Supreme Court and both remedies are still available after the election."

White said he did not know which route the ACLU would take should the amendment be approved. But if Hawai'i's voters reject the amendment, the case would be moot, he said.

In his dissent, Acoba said the restraining order would not stop the election, but would direct the state not to tabulate or certify the votes until the legal matters are resolved.

"While it is arguable that if the proposal is rejected, those who oppose it cannot claim injury, the likely invalidity of the amendment process itself subverts the legitimacy of whatever outcome may result," Acoba wrote.

City Prosecutor Peter Carlisle, who supports the proposed amendment, said he was pleased with the Supreme Court's decision.

"We want people to vote and we want people to make a decision on this important issue," Carlisle said. "This was basically an attempt to stop them from voting 'Yes' on Question 3 and now they have a right to go out and vote 'Yes' on Question 3."

The proposed amendment would allow prosecutors to send felony cases to trial by filing a signed, written "information," which usually is a police report and associated documents. Currently, felony cases are sent to trial by a judge at a preliminary hearing or by the grand jury with an indictment.