Monday, March 14, 2005

ACLU targets Act 50
as unconstitutional

Hawaii’s attorney general says
the state will win over the
squatters statute

A civil rights group says more people are coming forward to challenge a state law that aims to keep squatters off public property, which critics say is unconstitutional and has had a chilling effect on free speech.

The American Civil Liberties Union of Hawaii has sued the state over the law and had been seeking a preliminary injunction to stop the state from enforcing Act 50 while the case is pending. But ACLU attorney Lois Perrin said she has withdrawn that motion and plans to seek court permission to add plaintiffs to the original lawsuit.

"Since Act 50 became law, it has been used in a wide array of circumstances that far exceed what the Legislature originally intended," Perrin said. "This use has expanded the community's opposition to Act 50."

Attorney General Mark Bennett said the state will vigorously defend the lawsuit, arguing that the ACLU's case is based on the flawed premise that authorities would abuse the law.

"Any law is capable of being abused if a law enforcer acts in bad faith," Bennett said. "I think we have to pass our laws with the assumption that government officials are not going to act corruptly."

Meanwhile, Perrin said the ACLU is closely tracking a bill in the Legislature that would repeal Act 50 and make the lawsuit unnecessary.

"If the Legislature repeals Act 50, the ACLU's lawsuit will go away, which in turn will save the taxpayers and the state substantial amounts of time and money," she said.

The bill that became Act 50 passed unanimously out of the House and Senate in 2004 and was signed by Gov. Linda Lingle in May. It allows government officials to ban people from public property for up to a year after a written warning or request to leave the premises has been issued.

Although it was aimed at keeping squatters out of public parks and beaches, the ACLU contends the wording is so broad it can be applied to virtually any situation where an official wants to ban somebody from the property.

House Bill 806, House Draft 1, would repeal Act 50 and create a new petty misdemeanor offense to specifically address squatting at public parks and recreational grounds. The proposal already has passed out of the House and has been sent to the Senate for consideration.

Senate Judiciary Chairwoman Colleen Hanabusa said she plans to hear the bill, and she hopes those affected by the legislation will testify to give lawmakers a clear picture of what is at stake.

"We have all been trying to strike a balance between providing for the homeless ... and weighing the interest of the general community that at times is at odds with (them)," said Hanabusa (D, Nanakuli-Makua). "We have now had a year of this bill and will be able to get a better sense as to whether it needs to be tightened."

She said she also is looking forward to getting an update on the ACLU's lawsuit.

"If it appears that the ACLU will prevail in the lawsuit -- and I'm not saying that they are, but if it looks like that's where we're headed -- it would appear to me that we're better off amending the law than to go through that process," Hanabusa said.

Bennett said the issue of whether a change in law could save the state money on pending lawsuits should not be a concern.

"I believe that the law is constitutional and that we will succeed in the pending litigation," Bennett said. "If the Legislature believes that from a policy perspective the law ought to be changed, that's their kuleana."

The ACLU sued in federal court in September on behalf of Carlos Hernandez, a Honolulu man who said he was kicked out of the Hawaii State Library for looking at gay-themed Internet sites. Security guards had said Hernandez was looking at "screen after screen" of nude pictures in violation of library policy.

At a court hearing last month, state attorneys noted that library officials made a "technical error" and had since rescinded the one-year ban issued against Hernandez in May.

The lifting of the ban called into question whether Hernandez or the other remaining plaintiffs had standing to challenge the law.

The Center, a nonprofit group that provides services for the gay, lesbian, bisexual and transgender communities, and the Waianae Community Outreach, which provides case management services to the homeless, had argued that Hernandez's experience had a chilling effect on free speech by discouraging others from going to state libraries.

A hearing to determine the plaintiffs' standing was scheduled for today but has been canceled after the ACLU withdrew its motion for an injunction. Perrin said the group has not determined how many new plaintiffs it will try to add to the lawsuit.

"The ACLU is very confident that it will prevail on the merits of the lawsuit," Perrin said.

She added that the Constitution requires the law to be specific so that people know what they are allowed to do and so that authorities know what offenses to enforce.

"Act 50 doesn't provide either of those things," Perrin said.

Bennett was equally confident.

"I don't know what people have been telling the ACLU; I only know what their court filings have said," Bennett said. "I haven't seen any evidence from the litigation that demonstrates that anyone's constitutional rights have been violated."

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