Posted on: Tuesday, November 23, 2004
ACLU files lawsuit over sex-offender amendment
By Ken Kobayashi
Advertiser Courts Writer
The American Civil Liberties Union of Hawai'i asked the Hawai'i Supreme Court yesterday to invalidate one of four state constitutional amendments approved by voters Nov. 2.
In the lawsuit filed on behalf of 38 registered voters, the ACLU contends that the amendment on the state law dealing with repeated sexual assaults on minors was not properly approved by state lawmakers to be placed on the general-election ballot.
The suit was filed with the high court on the final day for challenges to the general election results.
The ACLU suit said that unlike the other three amendment proposals, the legislation for the amendment was added by state senators to a pending bill and the title wasn't changed to reflect that the measure was aimed at changing the constitution.
"Checks and balances are in place to ensure that the state Legislature cannot rush through measures without giving the public ample notice and opportunity to weigh in," said Patrick Taomae, one of the voters who filed the suit. "In this case, those protections were ignored."
Circuit Judge Victoria Marks had rejected a similar lawsuit filed before the election.
Attorney General Mark Bennett, who handled the case before Marks, said the state continues to believe the challenge is "entirely without merit." He said one unfortunate result is that the challenge will delay county prosecutors from filing charges under the state law.
The amendment is aimed at reversing a Hawai'i Supreme Court 3-2 decision last year. In that ruling, the majority overturned a conviction of a Maui man under the state's continuing sexual-assault law that carries a maximum 20-year prison term.
The statute allows for convictions if juries unanimously find that defendants commit three or more acts of sexual assault or molestation of minors under age 14. The high court majority ruled that defendants' rights are violated by not requiring juries to unanimously agree on the specific acts.
The high court's options include dismissing the lawsuit or asking for responses from the attorney general's office, which represents Gov. Linda Lingle, who is named in the suit.
The amendment received 282,841 "yes" votes compared with 148,307 "no" votes and blank and other ballots.
The three other amendments dealt with hearings for sex offenders under the Hawai'i Megan's Law; confidential communications between alleged crime victims and counselors and others; and a new method of sending felony defendants to trial.
Reach Ken Kobayashi at 525-8030 or kkobayashi@honoluluadvertiser.com.
