Three amendments on Nov. 5 ballot
By James Gonser
Advertiser Staff Writer
Voters in the Nov. 5 general election are being asked to decide if three proposed constitutional amendments will become law by voting yes or no on issues involving how defendants can be brought to trial, state revenue bonds for private schools, and residency requirements for legislative candidates.
Constitutional amendments must receive a majority of yes votes among all ballots cast to be adopted. That means 50 percent plus one vote. Blank or spoiled ballots have the same effect as "no" votes.
The most heated debate is over the amendment to allow prosecutors and the state attorney general to send felony criminal cases to trial by filing a "written informational" with a judge. It pits prosecutors and law enforcement groups against defense attorneys and civil-liberties groups.
• Amendment No. 1 "Shall a candidate seeking office in a senatorial or representative district be required to become a qualified voter in that district prior to filing nomination papers for the primary election?" Candidates for state Senate or House now are not required to actually live in the district till the day of the general election. The change would require them to live in the district when they file their nomination papers in July. • Amendment No. 2 "Shall the state be authorized to issue special-purpose revenue bonds and use the proceeds from the bonds to assist not-for-profit private nonsectarian and sectarian elementary schools, secondary schools, colleges, and universities; and to combine into a single issue of special-purpose revenue bonds two or more proposed issues of special-purpose revenue bonds to assist not-for-profit private nonsectarian and sectarian elementary schools, secondary schools, colleges, and universities, separately authorized, in a total amount not exceeding the aggregate of the proposed separate issues of special-purpose revenue bonds?" This allows private schools to tap into low-interest loans through tax-exempt, special purpose revenue bonds sold by the state to renovate school facilities. The state would not be obligated to repay the bonds if a loan becomes delinquent. • Amendment No. 3 "Shall Hawai'i's constitutional provision regarding the initiation of criminal charges be amended to permit criminal charges for felonies to be initiated by a legal prosecuting officer through the filing of a signed, written information setting forth the charge in accordance with procedures and conditions to be provided by the state Legislature?" Currently, there are two ways a felony case can go to trial — either with a grand jury in secret proceedings or by a judge at an open preliminary hearing. To send the case to trial, grand jurors or the judge must find "probable cause" that the defendant may have committed the crime. The amendment would add a third approach in which prosecutors submit a report to a judge who decides if there is probable cause.
Some experts say it's one of most significant changes in criminal justice since 1978, when the state constitution was amended to allow preliminary hearings to send cases to trial. Previously, all cases had to be heard by a grand jury.
The questions on the ballot
The ballot proposal deals with the way numerous people are ordered to stand trial on felony charges in Hawai'i. At present, those defendants can be brought to trial in one of only two ways: by a grand jury indictment or as a result of what's called a preliminary hearing.
The proposed amendment would authorize legislators to permit a third approach — called "information charging" — in which prosecutors would submit a statement, supported by affidavits of police officers or others, for a judge to consider solely in determining whether there is sufficient evidence to send a felony suspect to trial. An information sheet distributed by the state Office of Elections says the process is used in 10 states.
Honolulu Prosecutor Peter Carlisle, who is promoting ratification of the amendment, said the new system will save taxpayers' money, help clear up the backlog of courts cases, and free police officers and witnesses who are required to testify before grand juries or before the preliminary hearing judge.
But criminal defense lawyer Brook Hart said the proposal erodes due-process rights. Hart said the preliminary hearing and grand jury processes, which both require witnesses to swear that their statements are true, serve as a "meaningful screening process" to help determine the strength of a case.
Currently, in preliminary hearings prosecutors call witnesses, often including victims, in open court proceedings to testify before a judge in a felony case. The defendant is present and his or her lawyers can cross-examine witnesses. The judge then decides whether there is enough evidence or "probable cause" to believe that the person charged may have committed the crime and must stand trial.
In grand jury proceedings, which are confidential, prosecutors call witnesses to present testimony to a panel of 14 grand jurors who decide whether there is "probable cause" to issue an indictment that sends the case to trial. In those proceedings, witnesses are not cross-examined by defense attorneys; defendants are not present.
Critics of the measure said a companion bill that would have spelled out the specifics of how the process would work in Hawai'i was killed in the Legislature. Without those specifics, voters are being asked to buy a "pig in a poke," Hart said.
Carlisle said all county prosecutors in Hawai'i support the measure as do all of the county police chiefs, state Attorney General Earl Anzai and U.S. Attorney Ed Kubo. The Honolulu prosecutor estimated that it could save his office $600,000 a year.
Opponents include criminal defense attorneys, the Hawai'i chapter of the American Civil Liberties Union, several University of Hawai'i law school professors, the Teamsters, the ILWU and the Japanese American Citizens League. They say the federal criminal justice system does not permit "information charging" for felony cases.
Ratification of the proposed amendment would clear the way for the Legislature to draft a new section of state law that would allow prosecutors to use the "information charging" approach.
School bonds
Another amendment that has drawn debate deals with issuing school bonds for private schools. It would allow private schools to tap into low-interest loans through tax-exempt, special purpose revenue bonds offered by the state to renovate school facilities.
The state makes capital improvement loans through the sale of special purpose revenue bonds to private investors, who lend money for the project and bear the risk of nonpayment in return for interest payments exempt from federal and state income taxes. The bonds are not secured by the state so there is no public obligation to repay any of the bonds if a loan is delinquent.
Because the interest on the bonds is tax-free, investors are willing to lend money at lower rates. Schools can get loans about 25 percent below commercial rates.
The Legislature would have to approve any special purpose revenue bonds issued.
The state sells such bonds to provide financing for utilities, private preschools and hospitals run by nonprofits, and low-income government housing. Private schools say the proposed change would cost the state nothing and bring more construction jobs to Hawai'i.
Only the Hawai'i State Teachers Association is urging a "no" on ballot question No. 2. The union says the measure takes attention away from a $600 million backlog in maintenance work at public schools, benefits a small group of select students and blurs the lines between public and private.
Robert Witt, executive director of the Hawai'i Association of Independent Schools, said about 40 other states offer special purpose revenue bonds to private schools.
About 34,000 students in kindergarten through Grade 12 attend 130 private schools in Hawai'i. The total is more than 50,000 when the colleges are included.
There are 183,000 children in the public schools.
A 2001 report by the Legislative Reference Bureau said the bonds would not take money away from public schools. It also said private schools with the most stable enrollment and healthiest endowments would benefit, but small private schools say they can pool together to take advantage of the bonds.
Candidate residency
The remaining amendment — question No. 1 on the ballot — is the most straightforward.
Under present law, a candidate for state Senate or House is not required to live in the district until the day of the general election.
The amendment would require candidates to live in the district when they file their nomination papers in July. This would prevent politicians from "shopping around" for an open seat, hoping for an easy win without knowing much about the district.
No groups have come out in opposition to this amendment.
