Posted on: Friday, November 12, 2004

Officials may push more changes to constitution

By Ken Kobayashi
Advertiser Courts Writer

Flush with their success in getting four state constitutional amendments approved by Hawai'i voters on Nov. 2, proponents are considering pushing for additional measures — including two more dealing with the criminal justice system — in 2006.

No final decision has been made, but city Prosecutor Peter Carlisle and state Attorney General Mark Bennett are considering at least three changes to the constitution.

Two of the proposals deal with restoring the police "walk-and-talk" practice of asking passengers at airports if they can be searched for drugs and allowing defendants' criminal histories to be introduced at trials.

A third amendment would eliminate blank ballots in determining whether amendments are adopted.

The proposals are expected to draw heavy opposition from civil rights advocates, who fear they would lead to more erosion of rights enshrined in the state constitution and undermine the authority of the Hawai'i Supreme Court to guarantee those rights.

"The constitution is not a document meant to be monkeyed with every two years," says Susan Arnett, deputy public defender.

Just as three of the four amendments that were approved by voters were responses to Hawai'i Supreme Court decisions, two possible proposals for 2006 deal with high court rulings involving criminal justice issues.

One proposal that had been submitted to state lawmakers earlier, but was not approved for the ballot, deals with high court decisions declaring that defendants' criminal records cannot be introduced at trial except under very limited circumstances.

A key ruling was a 1971 high court decision. The amendment proposal would essentially allow defendants' records to be used to attack their credibility if they testify. The other would allow the police to resume the "walk-and-talk" practice that was ruled unconstitutional by a 1992 high court ruling.

It's too early to say whether Hawa'i residents will actually get to vote on the proposals. Each amendment proposal must pass both the state House and Senate by a two-thirds vote to get on the ballot. But the success of the four proposals in the past election suggests that at least the two dealing with the criminal justice system have a good chance of being approved by voters.

Neal Milner, a University of Hawai'i-Manoa political science professor, said the opponents have strong arguments, but they just don't seem to resonate with voters.

"It has to be something more than general civil liberties objections and something more than a kind of abstract argument about changing the constitution," he says.

Honolulu criminal defense lawyer Brook Hart agrees.

"Nobody really cares about constitutional protections until they themselves find that they are lacking in the protections they thought they had," he says. "The idea that 'it doesn't affect my life' is quite prevalent."

Arnett, the deputy public defender, says the focus should be on the lawmakers. "We're going to have to work really hard to convince the Legislature it is not appropriate to keep putting these things on the ballot," she says.

But opponents likely would have to deal with Carlisle and Bennett, who believe the high court has gone too far in its interpretation of the state constitution in criminal justice cases. It's a belief the two held as far back as 1998 when they wrote a scathing critique of the state Supreme Court's criminal justice rulings.

"The Hawai'i Supreme Court's approach to criminal law needs to be challenged and ultimately changed," the prosecutors wrote.

One way, they suggested, is to amend the constitution.

A final proposal being considered would be a change to the constitution that would allow amendments to be approved on the basis of more "yes" than "no" votes. Under the current system, a blank ballot is counted as a "no" vote.

Supporters of the most recently approved four amendments had feared that blank votes combined with the "no" votes would be enough to defeat the proposals this year, but the four amendments were approved with "yes" votes ranging from 72 percent for the amendment on Megan's Law to 53 percent for confidentiality of sex victims' statements to counselors.

"It's not democratic," Carlisle says about the current calculations. "It's basically an institutionalized maintenance of the status quo."

Bennett says counting blank ballots as "no" takes away the option of Hawai'i residents to abstain on the amendments. "I think people should have a right to say I don't want to weigh in on this question," he says.

Hart, the criminal defense lawyer, says the blanks indicate the voter hasn't reached a conclusion on the proposals.

"We should be certain when we take such a significant and serious step (changing the constitution) that people who are supporting it clearly outnumber those who are actively opposed and those who are uncertain," he says.

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