Lingle finding constitutional amendments hard to achieve

By Gordon Y.K. Pang
Advertiser Capitol Bureau

More than a third of the way into the 2004 legislative year, Gov. Linda Lingle is finding out just how tough it is to amend Hawai'i's Constitution.

Only three of Lingle's constitutional amendment bills have won preliminary approval from at least one of the two houses. Three others likely won't be heard at all this session.

The seventh bill, Lingle's much-debated proposal to eliminate the Board of Education and replace it with seven localized boards, suffered a major blow last week when the House voted it down 30 to 20. The Lingle administration is now banking on the Senate to keep that plan alive.

Greg Gaydos, a Hawai'i Pacific University political science professor, said it's no surprise amendments proposed by the state's first Republican governor in four decades are running into trouble with the Democratic-controlled Legislature. Democrats "are just going to oppose anything that's going to make her look good," Gaydos said, except in the case of issues where voters have strong feelings.

Most striking is the constitutional amendment approved by voters in 1998 that gave authority to state lawmakers, rather than the courts, to ban same-sex marriages. Gaydos believes none of the amendments proposed by Lingle, including dismantling the school board, approach that level.

While turning back the key educational reform measure she offered, House Democrats approved several constitutional amendments on school governance that are more to their liking. Among them was House Bill 2184, which would expand the school board from 13 to 17 voting members, and House Bill 33, giving the board more autonomy.

But even surpassing a two-thirds majority in the House can't assure that a Democratic-proposed constitutional amendment will make it on the ballot. House Bill 2589, which would have done away with the governor's line-item veto for any part of the Department of Education budget, failed to advance, and instead was sent back to its initial committees.

Even to get on the general election ballot this November, any proposed constitutional amendment this year will need to be approved by a two-thirds majority in both the Senate and House.

The proposals that make it onto the Nov. 2 ballot must then gain a majority vote, defined as 50 percent of all the votes cast in the election, meaning blank and spoiled votes do not count.

Even then, the amendment is subject to court challenge based on whether constitutional procedures were followed. On Tuesday, the Hawai'i Supreme Court struck down the voter-approved amendment in 2002 that allows city and county prosecutors to send felony cases to trial based on written reports to a state judge.

Former Govs. Ben Cayetano and John Waihee each said they did not recall introducing as many significant constitutional amendments in a given election cycle as did Lingle this year.

They warn it is a path that should be tread lightly. Attempts to change the constitution "should be done selectively and with considerable thought," Cayetano said.

Lingle and her supporters contend that the amendments are necessary, and several ward off court challenges to changes in criminal law.

Four other Lingle proposals seek to overturn decisions made by the Hawai'i Supreme Court involving crime-related policies.

Cayetano and Waihee said they were not sure Lingle should be seeking constitutional amendments to make changes to criminal law.

"I just think a lot of these things can be done statutorily," Waihee said. "It allows for more flexibility."

Constitutional amendments tend to be broad, he said, while statutes can be targeted to specific issues.

"I think constitutional amendments are things you ought to use very sparingly," Waihee said. "It's fundamental law, and it's very difficult once you have it in there to amend it."

Mark Bennett, Lingle's attorney general, said it is reasonable to ask lawmakers to send the bills to voters. "I believe that in none of these four cases can the result be accomplished statutorily," he said.

One measure would give the public access once again to registered information about people convicted of sexual offenses or crimes against children. In 2001, the Hawai'i Supreme Court struck down a key portion of the state statute known as Megan's Law, saying it violated state constitutional guarantees of due process by not providing convicts with a hearing before publicizing their names.

"Megan's Law may be important, but it hardly is on the level of the laws set forth in the Bill of Rights," Cayetano said. "Lingle should submit the proposed changes to the Legislature. Amending the Hawai'i constitution to include it is like amending the constitution to change the law on drunk driving."

Bennett disagreed. "For the Megan's amendment bill, the Supreme Court has said there is state constitutional due process right to a hearing, so the only way — separate and apart from the criminal conviction — to address that is with a constitutional amendment."

Senate Judiciary Chairman Colleen Hanabusa, D-21st (Nanakuli, Makaha), said she does not like the notion of "piece-mealing" constitutional amendments that address specific opinions issued by the high court.

However, she said the Legislature needs to consider asking voters to amend the constitution to clarify that lawmakers, not the court, make laws pertaining to issues such as privacy and search-and-seizure.

Professor Jon Van Dyke at the University of Hawai'i John A. Burns School of Law said he believes the administration is within its right to seek constitutional amendments it deems necessary.

With its four amendment bills, Van Dyke said, it appears the administration wants to overturn several positions of the Supreme Court.

"In a democracy, that is something that is appropriate," he said. "I don't think there's anything wrong with the governor or anybody raising these issues and calling for a debate on it."

Van Dyke said he did not think the Supreme Court rulings should be challenged at this time.

Only one of the four proposals dealing with criminal law appears to be alive in this year's session, the one dealing with Megan's Law.

The Legislative Reference Bureau said 107 bills have been introduced this year or last that call for constitutional amendments on the November ballot.

Since 1978, when the state held its last constitution convention, 32 of 47 constitutional questions submitted to voters have been approved. By contrast, the U.S. Constitution has been amended only 27 times.

If two constitutional amendments make it onto the ballot with conflicting mandates or language, and both win approval, the state constitution says the amendment with the highest number of "yes" votes become law.

Reach Gordon Y.K. Pang at gpang@honoluluadvertiser.com or at 525-8070.