Hawaii Supreme Court
hears ACLU’s challenge
to amendment

A constitutional amendment dealing with sexual assault against children and approved by 65 percent of voters last November should be voided because the state Legislature failed to follow proper procedures in getting it on the ballot, the American Civil Liberties Union says.

The Hawaii Supreme Court heard oral arguments yesterday from the ACLU and the state attorney general who contends the Legislature did what was required.

"We're asking the court to reject this challenge so that the amendment can be upheld," said Attorney General Mark Bennett.

At issue is Act 60, a bill that was passed with no opposition by the Legislature, proposing a constitutional amendment that makes it easier to prosecute those accused of continuous sexual assault against children.

ACLU attorney Lois Perrin argued that any bill proposing to amend the state Constitution must follow the same procedures for adopting any legislation in general, including having it voted on three times by each chamber.

In this case, the House did not give the actual amendment its requisite three votes because it was not until the bill reached the Senate and passed the first vote did a Senate committee insert into the bill an amendment to the Constitution.

By then there was no formal procedure for the public to weigh in on the proposed constitutional amendment. The Senate passed it after three votes, and the Legislature adopted the final version with no opposition.

The constitutional requirements, Perrin said, are there for good reason: "That is to give the public notice and opportunity to comment. We are supposed to be able to influence our legislators and have the opportunity to change the content of things, not just vote yes or no."

Bennett argued that the Legislature complied with the plain language and intent of the Constitution and had done the same on previous occasions with no challenges.

It is up to the Legislature to decide what the normal legislative process is, he said. For the court to find that the Legislature violated the Constitution beyond a reasonable doubt in the way it conducts its ordinary affairs would be a "gross intrusion into the prerogatives of the Legislature."

The Legislature contends that it fulfilled the plain language of the Constitution for proposing a constitutional amendment when it adopted the amendment in the same way it adopts other legislation, and passed it with a two-thirds vote in each house on final reading.