Court overturns 'direct filing' vote
By David Waite and Curtis Lum
Advertiser Staff Writers
The Hawai'i Supreme Court yesterday struck down a controversial constitutional amendment that would have allowed prosecutors to send felony cases to trial based on written reports to a state judge.
About 57 percent of some 385,000 voters in the 2002 general election voted for the amendment, but in a unanimous decision released yesterday, the five high court justices agreed with the American Civil Liberties Union that the ratification process was flawed.
The court said the state did not provide a complete text to state libraries, and a voter-education pamphlet that was mailed to all registered voters in the state about a month before the election did not contain the text of the proposed amendment.
The justices said the state showed a "complete disregard" of the process mandated in the state constitution for adopting amendments.
Attorney General Mark Bennett said he was disappointed by the decision but said state law permits the proposed amendment to be placed on the upcoming general election ballot Nov. 2.
Although voters approved the amendment in 2002, prosecutors have not yet used the direct filing because the underlying legislation to implement the provisions has not been adopted by the Legislature. A bill is pending before lawmakers.
Honolulu Prosecutor Peter Carlisle and Neighbor Island prosecutors and police chiefs supported the amendment, saying the measure would save time and money for law-enforcement agencies and would save crime victims, police and others from having to appear in court for preliminary hearings or grand jury sessions.
Currently, defendants must stand trial on felony charges only if a judge at preliminary hearing or a grand jury returns an indictment that finds that the defendant probably committed the crime.
Under the proposal, a judge could order the defendant to trial based on reports and statements from the prosecutors.
The amendment's opponents, including the ACLU and some criminal defense lawyers, contended that the so-called "information charging" or "direct filing" process amounted to an erosion of the "due process rights" of people charged with serious crimes.
"This constitutional amendment is potentially very dangerous because it would give the prosecutor and police enormous power to lock people up and keep them there for months, even where they're not guilty of crimes," said Earle Partington, who specializes in criminal defense.
Carlisle yesterday declined to comment on the high court ruling, but has scheduled a news conference for noon today.
Maui Police Chief Tom Phillips called yesterday's decision "unfortunate."
"I think it would have been a huge benefit to the law-enforcement community in Hawai'i and to the victims of crime as well," Phillips said.
He said until "direct filing" is adopted, "we'll have to rely on the old system of dragging people to court too many times."
But opponents of the proposal applauded the ruling.
"The importance of this case goes beyond the immediate ballot question because the people have a right to have the proper submission of any amendment they want," ACLU executive director Vanessa Chong said. "The people are entitled to see that any proposed amendment is lawfully done."
The ACLU did not challenge the validity of two other constitutional amendment proposals that were on the 2002 ballot. The two, dealing with tax-free special-purpose bonds for private-school projects and candidate residency, were approved by the voters.
Honolulu criminal defense lawyer Brook Hart, an outspoken critic of "direct filing," said he was pleased that the court "vindicated our concerns about this issue."
He said he had "several conversations" with state elections officer Dwayne Yoshina and others in Yoshina's office in October 2002 about what he felt were inaccuracies in the voter-information pamphlet about the information-charging proposal.
Hart got a letter dated Oct. 14 from Aaron Schulaner, a deputy attorney general assigned to the state Office of Elections, telling him: "The ballots and the informational materials have already been printed. Absentee voting has also already commenced. We have reviewed your concerns but believe the materials can be defended as written."
Hart said he then encouraged the ACLU "to take up the matter."
A series of court challenges were mounted in the weeks leading up to the election but were rejected. In a last-ditch effort, a request was filed with the high court on Nov. 1 for an order to keep votes on the direct filing amendment from being counted, but that request was denied on Nov. 4, the eve of the election.
On Nov. 22, 2002, the ACLU filed a lawsuit in the Supreme Court on behalf of 46 people, all of whom were Hawai'i residents and registered voters, alleging the prescribed procedures to amend the state Constitution had not been followed.
In its 30-page opinion written by Chief Justice Ronald Moon, the Supreme Court agreed.
In addition to not providing the text to state libraries and not including the text in the voter-education pamphlet, the state did not print the proposed amendment in any newspaper until less than a week before the general election, the opinion said.
"Under these facts, extensive media coverage can neither substitute for the notice mandated by the fundamental law of this state nor excuse the defendants' complete failure to abide by that mandate," the ruling said.
Bennett said state election laws require that if the high court invalidates the results of an election, the governor shall call a new election to be held within 120 days after the court's judgment is filed.
But Bennett said his office will ask for a stay in the filing of the judgment so a new vote can be held in conjunction with the general election. He said this would avoid a costly special election and will "allow as many voters to vote on the amendment as possible."
House Majority Leader Scott Saiki, D-22nd (McCully, Pawa'a), said if Bennett is incorrect, the lawmaker believes there is ample time for lawmakers to approve the same amendment to send to voters this fall.
Reach David Waite at dwaite@honoluluadvertiser.com or at 525-8030. Reach Dan Nakaso at dnakaso@honoluluadvertiser.com or at 525-8085. Advertiser staff writer Gordon Y. K. Pang contributed to this report.
