Assault amendment voided

The state high court rules
the constitutional amendment
was improperly approved

The Hawaii Supreme Court has invalidated a constitutional amendment approved by voters last year, because of procedural errors by the Legislature.

The amendment would have allowed the Legislature to decide what constitutes a continuing course of conduct for tougher sentencing in child sexual-assault crimes.

"We're disappointed in the decision," said Bridget Holthus, special assistant to the attorney general. "I think the Legislature will also be very disappointed. HB 2789 passed unanimously in the Legislature in 2004.

"Hawaii's voters will be disappointed because two-thirds of Hawaii's voters voted in favor of this amendment," Holthus said. "So this decision essentially overrules the will of all those voters."

A complaint filed Nov. 22 against Gov. Linda Lingle and chief election officer Dwayne Yoshina challenged the validity of the passage of the bill and its presentation to voters on the general election ballot.

The high court ruled that the procedures by which the Legislature passed the bill were a violation of the Constitution because the proposed amendment was not properly titled as a constitutional amendment, and it was not subjected to three required votes in each house.

Lois Perrin, legal director for the American Civil Liberties Union of Hawaii Foundation, which filed the complaint on behalf of 38 registered voters, including some defense lawyers, was thrilled with the Supreme Court's decision.

"This decision states that the constitution: 1) is of a higher order than ordinary laws, and 2) that should be respected as such in a document that's not supposed to be very easy to amend," Perrin said.

The matter was a question of procedure, and the ACLU took no position on the merits of the proposed amendment, Perrin said.

The amendment would have affirmed an existing law that says jurors may find someone guilty of "continuous sexual assault" if they can agree the defendant sexually assaulted a child at least three times during a specific period, even if they cannot agree on three specific dates and incidents.

The high court threw out a conviction in a sexual case last year, saying the law violated the defendant's right to due process when he was not convicted of a specific incident.

"The Legislature will have the opportunity to introduce a constitutional amendment in the next session to do it the right way, and the public will then have the benefit of knowing their Legislature has engaged in a full debate before they're asked to vote on a constitutional amendment," Perrin said.

Defense lawyer Arthur Ross said the court's decision will prevent such a proposal in the Legislature "from being slipped through without public scrutiny."

Ross called the bill vague and said that details of the measure should be worked out before passage.