Prosecutor, attorney general plan new drive for voided amendment

By David Waite
Advertiser Courts Writer

City Prosecutor Peter Carlisle yesterday said the Hawai'i Supreme Court ruling this week that struck down an amendment to the state Constitution was based on an insignificant procedural error.

Carlisle was the most outspoken supporter of the amendment that would have allowed city and county prosecutors to send a felony case to trial by submitting written reports to a judge.

"We've lost a popular vote (victory) based on a procedure that would've had absolutely no impact on the outcome of the election," Carlisle said.

About 57 percent of some 385,000 voters in the Nov. 5, 2002 general election voted for the amendment. But in a unanimous decision, the Supreme Court ruled in favor of the American Civil Liberties Union and faulted the state Office of Elections for not following the prescribed process by which voters are to be educated about proposed amendments to the state constitution before voting on the changes.

"If the text of the proposed changes had been posted on library doors or printed in a daily newspaper at least once a week for four weeks prior to the election, it would have had an insignificant impact on the election results," Carlisle said.

Currently, a defendant must stand trial on felony charges only if a judge at preliminary hearing or a grand jury returns an indictment that finds "probable cause" that the defendant probably committed the crime. The proposal would have established a third way to send a defendant to trial based on a judge finding "probable cause" based on reports submitted by the prosecutors.

Attorney General Mark Bennett said he will seek to have the same amendment proposal placed on the Nov. 2 general election ballot. He said placing the amendment on the ballot is permitted under state law.

But Senate Judiciary Chairwoman Colleen Hanabusa, D-21st (Nanakuli, Makaha), yesterday said she disagrees with Bennett's interpretation and believes the Legislature will need to once again get approval from two-thirds of each house before the question can be placed on the general election ballot.

Hanabusa said the constitution makes it clear that any amendments passed by the Legislature in a given year need to be placed on the ballot of the most immediate general election following it. "There's nothing in the constitution that permits us to wait two general elections after that," she said.

Hanabusa said she will work with House leaders on coming up with a new proposal before the end of the session for the bill to be approved and available for placement on November's ballot.

"The good news is that we're not going away," Carlisle said. "Next time, we will make sure that the necessary copies of the amendment text are run behind the obit ads in the newspaper and are posted on all of the state library doors."

The Hawai'i Supreme Court has rejected other constitutional amendments approved by the voters.

In 1979, the high court affirmed the validity to 94 amendments from the state constitutional convention, but rejected six because the court said the convention did not provide sufficient information on their substantive effect. Among them were provisions defining "Hawaiian" and "native Hawaiian" and a provision for home ownership on public lands.

Advertiser staff writer Gordon Y. K. Pang contributed to this report. Reach David Waite at dwaite@honoluluadvertiser.com or at 525-8030.