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The Honolulu Advertiser
Posted on: Thursday, October 24, 2002

ACLU challenges amendment

By James Gonser
Advertiser Staff writer

In what could be the start of a lengthy legal battle, the American Civil Liberties Union yesterday filed a lawsuit in Circuit Court to nullify a constitutional amendment proposal regarding how felony defendants can be brought to trial.

The proposal will be on the Nov. 5 general election ballot.

The ACLU filed the suit on behalf of two residents, saying constitutional amendment proposal No. 3 should be scrapped because it includes "false and misleading information about the proposed amendment and is in violation of the state and federal constitutions."

Deputy Attorney General Aaron Schulaner said the information explaining the amendment proposals was produced by the Legislative Reference Bureau in compliance with the law and given to the chief election officer to disseminate.

"We believe they are complying with the law unless it became clear to us in reviewing the materials that there are some manifest errors," Schulaner said. "But as of now we have no knowledge of any clear errors."

The suit, which names state Chief Election Officer Dwayne Yoshina and acting director of the Legislative Reference Bureau Wendell Kimura as defendants, asks the court to block voting on the amendment and to ensure that "no" votes cast on the question be counted.

The lawsuit also asks the court to stop the state from distributing misleading information about the proposed amendment and to let voters know what has been published in inaccurate.

Even if the lawsuit fails to block the adoption of the proposal, the ACLU plans to contest the constitutionality of the first criminal charge filed under the amendment, according to Brent White, ACLU legal director.

The amendment proposal, 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.

At present, defendants are brought to trial by either a grand jury indictment or as a result of a preliminary hearing.

The suit alleges that complete proposed amendment has not been published in newspapers or made available in public libraries as required by law and that the text of the proposed amendment is different from the wording on the ballot question.

According to the ACLU, the ballot question infers that the Legislature is committed to establishing the procedures for information charging, but the amendment only provides that it "may" provide those procedures.

The difference is important, the ACLU said.

"Amending the constitution is a serious matter and voters are being asked to change the state constitution without having all the necessary facts before them to decide," said A. Joris Watland, one of the plaintiffs in the case. "I am opposed to this amendment because I do not think that it provides adequate protections for the criminally accused."

White said the voter education material explaining the amendment is filled with errors.

"The question begins with a misstatement of the facts about why this (amendment) might be necessary and then it misleads the voters to make them think there is some kind of procedural protections that will be adopted or have been adopted," White said.

Honolulu Prosecutor Peter Carlisle said he continues to support the amendment and could not use information charging in court until procedures are developed by the Legislature.

"The Legislature would have to come up something that would satisfy the due-process requirements of the constitution," Carlisle said. "If they come up with nothing, then there is no due process. If it is unconstitutional, it doesn't work. I want something that works."

Reach James Gonser at jgonser@honoluluadvertiser.com.