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The Honolulu Advertiser

Updated at 1:03 a.m., Wednesday, November 3, 2004

Voters OK all four constitutional amendments

Full election coverage
Get detailed, updated results and read about the races and candidates in our Election 2004 special report, which includes our Voters' Guide.

By Ken Kobayashi
Advertiser Courts Writer

Hawai'i residents approved all four constitutional amendments yesterday, giving state lawmakers the authority to adopt laws in four areas of the criminal justice system without the state courts declaring them unconstitutional.

Constitutional amendment results

YES — 1. Shall the Constitution of the State of Hawai'i be amended to provide that the Legislature may define what behavior constitutes a continuing course of conduct in sexual assault crimes?

YES — 2. Shall the Constitution of the State of Hawai'i be amended to provide that the public has a right to access to registration information regarding persons convicted of certain sexual offenses, and that the Legislature shall determine which offenses are subject to this provision, what information constitutes registration information to which the public has a right to access, the manner of public access to the registration information, and a period of time after which and conditions pursuant to which a convicted person may petition for termination of public access?

YES — 3. Shall the Constitution of the State of Hawai'i be amended to permit the Legislature to provide by law for the inadmissibility of privileged confidential communications between an alleged crime victim and the alleged crime victim's physician, psychologist, counselor or licensed mental health professional?

YES — 4. 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?

"I think this is great for victims of crime and/or the state in general," said state Attorney General Mark Bennett, who along with city Prosecutor Peter Carlisle was a leading advocate for the four proposals. "I think this sends a message that the people of Hawai'i are concerned about leveling the playing field in the criminal justice system."

Carlisle agreed.

"They are ideas whose time has come, and it restores a necessary balance in the criminal justice system," he said.

Opponents weren't surprised.

"Those who were supporting and sponsoring these amendments were well financed, well organized and they were able to recast the labels for the amendments in ways that misled the voters in some respects," said noted Honolulu criminal defense attorney Brook Hart.

Three of the proposed amendments were in response to Hawai'i Supreme Court decisions during the past three years.

The proposals drew heated debate in the legal community. Supporters contended that they restore rights to victims and free police from court hearings to be in the community to deter crimes and make the Islands safer.

But opponents warned that they set a dangerous precedent of stripping the courts of their role of reviewing laws to ensure that civil rights are protected.

Supporters included law enforcement officials, including police and prosecutors, while opponents included criminal defense lawyers and civil-rights advocates.

To be approved, the amendments needed more "yes" than "no" and blank ballots combined.

The amendments approved were:

• Direct filing. The amendment proposal passed in 2002, but the Hawai'i Supreme Court struck it down earlier this year, ruling that the state did not properly notify the public about how the procedure works. The amendment authorizes state lawmakers to allow city and county prosecutors to send felony cases to trial by submitting written reports to a judge. The new method, called direct filing or information charging, would be in addition to prosecutors sending cases to trial with a grand jury indictment or a judge's ruling at a preliminary hearing.

• Megan's Law. The amendment is in response to a 2001 Hawai'i Supreme Court decision that ruled sex offenders should be given a hearing to explain why their work and home addresses and photographs should not be made public. The amendment gives the Legislature the authority to determine who should get those hearings.

• Continuing sex assault law. The amendment essentially restores a state law that carries a maximum 20-year prison term for offenders who sexually assault or molest children under age 14 three or more times. The law required juries to unanimously find that at least three offenses occurred. In a 3-2 decision last year, the high court held that the law violates defendants' rights because juries do not have to unanimously agree on the specific acts.

• Confidentiality. The amendment deals with the confidentiality of victims' statements to counselors. In 2003, the high court ruled that a man accused of molesting a girl should have had the chance to ask her about whether she told a counselor that the offense never happened.

Supporters say the amendment would help keep those statements confidential, but opponents argue that state law already provides for confidentiality unless they conflict with defendants' rights.

City charter

Three of four amendments to the Honolulu City Charter were approved yesterday, but O'ahu voters rejected the proposal to place employees of the Neighborhood Commission, other than the executive secretary, in civil service.

The three that were approved require at least five of the nine appointees to the advisory Neighborhood Commission to be former members of a neighborhood board; allow the City Council to appoint a temporary replacement for a council member called to active duty out of state for a half-year or more; and require meetings of a City Charter Commission to be held every 10 years after a year ending in the numeral 4.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com or 525-8030.