ACLU tries to overturn
amendment in Hawaii

The suit in high court addresses
a law that targets sex assault

The American Civil Liberties Union of Hawaii has asked the state Supreme Court to invalidate a state constitutional amendment approved by 65 percent of Hawaii voters because the 2004 Legislature allegedly erred in the process of getting it on the ballot.

The ACLU lawsuit filed yesterday against Gov. Linda Lingle and chief elections officer Dwayne Yoshina claims, "The Legislature neglected to follow the mandatory requirements of the Hawaii Constitution."

Voters overwhelmingly said yes to amending the Constitution "to provide that the Legislature may define what behavior constitutes a continuing course of conduct in sexual assault crimes."

ACLU attorney Lois Perrin said the error occurred when legislators sought to override a 2003 Hawaii Supreme Court ruling that threw out a sexual assault conviction because the court found the law violated the defendant's due process. The law provides that jurors can find someone guilty of "continuous sexual assault" if they agree that the defendant assaulted a child at least three times, even if they are not unanimous on specific incidents of assault.

The state House of Representatives passed a bill to amend the law. But when it got to the state Senate, the measure was upgraded to a proposed constitutional amendment -- which "materially changed and broadened the content of the bill passed by the House."

The ACLU contends that the amendment is void because the House did not vote three times on it as a Constitution amendment proposal.

"The state Constitution protects fundamental rights which affect every individual," said lead plaintiff Patrick Taomae. "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."

In response to an earlier ACLU suit, Circuit Judge Victoria Marks declined last month to stop state election officials from tabulating the vote after the Nov. 2 election.

"We bring these cases for constitutional clarity," Perrin said. The suit was filed on behalf of 38 registered voters.

"Constantly tinkering with the state Constitution to overturn court decisions that preserve fundamental rights is dangerous," said attorney Earle Partington, who represents some plaintiffs.

The Supreme Court upheld a similar legal challenge to an amendment on the 2002 ballot. It found the state had failed to comply with requirements to publish voter education materials. The amendment allowing an alternative to the grand jury method of charging felons was approved again by voters Nov. 2.