The City Council yesterday advanced a measure that would allow voters to decide whether the city should build a $3.7 billion commuter rail system.

However, that question won't land on the November ballot unless it can survive one more vote next Wednesday. Until then attention will focus on the Honolulu Circuit Court, where Stop Rail Now is suing the city to get an anti-rail ordinance before the electorate in November.

The first hearing in that case is scheduled to occur in Judge Karl Sakamoto's courtroom this morning. The outcome of that hearing could affect whether the council follows through with plans to put a rail question on the ballot via a Charter amendment.

Stop Rail Now claims it has collected 49,041 signatures to put the issue on the ballot. However, Honolulu City Clerk Denise De Costa refused to accept the petition earlier this month, arguing it was delivered too late to make the November election.

Stop Rail Now is asking for a preliminary injunction forcing the city clerk to accept the petition while the issue is litigated.

"From my vantage point all eyes are not on the Honolulu City Council right now on this issue," said Councilman Charles Djou. "It's on Judge Sakamoto and on what Judge Sakamoto decides to do with his hearing on Stop Rail Now's petition.

"If the judge orders Stop Rail Now's petition onto the ballot I think this hand-holding that's been going on here at the City Council will go away. If the (Stop Rail Now) question is not put on the ballot, then I think we should keep moving this forward."

The current proposed amendment to the city Charter states that the city shall "establish a steel wheel on steel rail transit system." An amendment attached to that measure yesterday would allow the city to consider alternate transit technologies for future extensions of the system.

Council members still remain at odds over how to craft a rail question. Councilman Gary Okino wants the question to ask whether the city should build a rail mass transit system. Part of the concern is that people who want the city to build a monorail or magnetically levitated train would vote against building a steel-wheeled train.

"If we're going to put it on the ballot and we want to settle this question now, that's the question that should go on he ballot," Okino said. "Steel-on-steel language is too specific. The public is expecting us to put on the ballot this question about rail mass transit."

Stop Rail Now's proposed ordinance reads: "Honolulu mass transit shall not include trains or rail." If the Charter amendment is placed on the ballot and voters approve it, Stop Rail Now's petition becomes irrelevant. That's because a voter-based ballot initiative cannot override the city's Charter.

Stop Rail Now co-chairman Dennis Callan yesterday called the city's effort to put the question on the ballot a scam.

"It's a fake choice because a 'yes' vote will force the city forever, until another Charter amendment goes through, to build rail," he said. "Whereas a no vote will do nothing to stop rail. This whole thing is a scam."

In a separate action yesterday, the council's Executive Matters Committee voted unanimously to advance a proposed city Charter amendment to create a transit authority, which would oversee design, construction and operation of the commuter rail that would link East Kapolei to Ala Moana.

One of the remaining stumbling blocks is how much autonomy to give the new authority. Council members also have yet to agree whether the rail and transit authority issues should be combined into one question or split into two.

The outcome of Stop Rail Now's lawsuit is key to the Charter amendment discussion, said Councilman Todd Apo.

"Two things I think would be very bad," he said. "One, I think, would be for no question to be on the ballot either through this Charter (amendment) or through the (Stop Rail Now) initiative. The other bad thing, I think, would be to have both of them on because I think that would create confusion."

Planning for the 20-mile elevated commuter rail project is well under way, and the city hopes to start construction in late 2009 or early 2010. The project is expected to cost an inflation-adjusted $5 billion and take nearly a decade to complete.