ACLU fails to block ballot amendment on child sex law

By Ken Kobayashi
Advertiser Courts Writer

A state judge refused yesterday to block the balloting or vote tabulation for one of four proposed constitutional amendments in Tuesday's general election.

The American Civil Liberties Union of Hawai'i challenged the proposal that essentially would uphold a state law on repeated sexual assaults on minors. The ACLU contended that the proposal was not properly approved by the Legislature for placement on the ballot.

But Circuit Judge Victoria Marks said that while ACLU's argument is "interesting," it's difficult for her to say ACLU is likely to prevail in the lawsuit. She also said her denial of the request for a restraining order won't irreparably harm the eight registered voters who filed suit.

In addition, the public interest wouldn't be served by interfering with the election, especially since walk-in voting is under way and absentee ballots have been sent out, Marks said.

Earle Partington, an attorney assisting the ACLU, contended that the state constitution requires that amendment proposals be introduced at the Legislature and go through the process for approval. But the proposal on the sexual assault law was tacked on to pending legislation, he said.

He said the judge should at least block the tabulating and certification of the vote on the proposal.

Attorney General Mark Bennett, a staunch advocate for the amendments who argued the case yesterday, called the lawsuit "entirely frivolous." He said other proposed amendments were approved by legislators in the same way as the sexual assault law proposal.

Bennett also noted the ACLU waited until 17 days before the election to file the suit when the measure had been passed during the legislative session that ended months ago.

"This amendment is intended to protect children from child molesters and this lawsuit, if it had succeeded, would have helped the child molesters," he said.

Partington said he wasn't surprised by the decision. "I think trial judges are naturally reluctant to interrupt an election," he said.

He indicated the lawsuit was filed for procedural reasons because ACLU intends to file a legal challenge with the Hawai'i Supreme Court after the election. He said they did not want the state to argue that the group gave up its right to challenge the amendment proposal by not raising the issue before the election.

Partington said the challenge is not based on the content of the proposal, but added that the amendment is not about protecting children, but rather about "imprisoning innocent people."

The amendment proposal is in response to a Hawai'i Supreme Court 3-2 decision last year that overturned a conviction of a Maui man under the state's continuing sexual assault law. The law carries a maximum 20-year prison term for anyone who sexually assaults or molests a minor under age 14 three or more times.

The law requires the jury to unanimously agree that there were three or more acts, but does not require them to unanimously agree on which three. The high court majority ruled that the law violates the rights of defendants by not requiring the jurors' unanimous agreement on specific acts.

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