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Winter 2004

2004 State Council
At the Legislature (Jean Aoki)
Bottle Bill Survives Legislature (Malama Souza)
Berkeley City Council Places Public Funding on November Ballot (Jean Aoki)
Viewpoint: Campaign Finance Reform (Grace Furukawa)
Mark Your Calendars
Report from Kauai (Carol Bain)
East Hawaii Report (Lois Cecil)

At the Legislature

NOTE: The first part of this article was written several months ago; because it speaks to issues which will appear again, if not in the next legislature, then in the one after that, I've resubmitted it with some amendments.

The hearing room was quite packed. Fourteen of the fifteen-member House Judiciary Committee were present which in itself does not occur frequently.

Prominent members of the legal profession testified both for and against HB 2376 which proposes a constitutional amendment to Article I of the Hawaii State Constitution – the Bill of Rights chapter – to allow the prosecution to use evidence that was derived from "consensual conversations between law enforcement officers and other persons." Among those presenting testimony were Attorney General Mark Bennett, Prosecuting Attorney Peter Carlisle, former Associate Supreme Court Justice Robert Klein, legal scholars John Van Dyke and Richard Miller, officials from the Public Defender's Office, and representatives from many public interest organizations.

HB 2376 would add a new section to Article I, entitled "Conversations Involving Law Enforcement Officers." The new section would read:

Section . Law enforcement officers may speak and converse with other persons. No evidence in a criminal case shall be suppressed or otherwise excluded from evidence based upon a claim that any such conversations or speech, or acts accompanying, connected with, or attendant to such conversations or speech, were illegal in any way, improper or constituted an illegal search and seizure, unless such suppression or exclusion is required by the Constitution of the United States.

This would allow the practice popularly called "walk and talk", which would allow the questioning of people without a warrant. NOTE: A Senate bill would have allowed both "walk and talk" as well as "knock and talk" which would have allowed an officer to knock on any door and talk to the residents looking for evidence of criminal behavior or acts.

An Opportunity Lost

What ensued was hours of testimony and questioning by members of the Judiciary Committee. Both the testimony as well as the questions and the discussions by legislators, proved to be informative and illuminating. Most focused on Attorney General Bennett, Justice Klein and Professor Van Dyke during the time I was in attendance.

I wanted everyone to hear this, but, alas, this hearing wasn't being telecast on 'Olelo. Had it been, anyone interested in the issue of giving our law enforcement officials more "tools" for the war on crime, especially with the use, manufacture, importation, and distribution of illicit drugs at the expense of surrendering some of our civil rights would have benefited from this exhilarating discussion.

H.B. 2376, and similar bills allowing for "walk and talk" have been held in committee both in the House and the Senate. S.B. 2851, the Senate version of H.B. 2376, was gutted and replaced by the amendment to the constitution ratified by voters the 2002 General Election.

Because the proposed amendment was not properly placed in a "newspaper of general circulation," the Supreme Court nullified its adoption. Once again, it will be placed on the ballot in 2004.

Several bills aimed at relaxing the rules for the electronic surveillance of suspected drug crime perpetrators were heard; one made it to conference, but failed passage.

Another Constitutional Amendment

One interesting bill which passed, if ratified by voters in November, will amend Article I, Section 14 of the State Constitution. Section 14 deals with "Rights of Accused." This section preserves the rights of accused to be tried by a twelve-person jury in contrast to U.S. Supreme Court ruling that criminal cases can be tried by juries with fewer than twelve people.

S.B. 2846, S.D.1 would "allow the state legislature to enact legislation to provide for the inadmissibility of an alleged sexual assault victim's prior sexual history and of privileged confidential communications between the victim and the victim's physician, psychologist, counselor and licensed mental health professional." Testimony on this bill was mostly in support of this measure, but it was opposed by the Office of the Public Defender and ACLU of Hawaii.

Independence of Watchdog Agencies

We've always advocated for the independence of agencies like the Campaign Spending Commission, the Office of Information Practices, the Ethics Commission, and the Elections Office. While the Elections Office would not be considered a watchdog agency, it needs the independence to remain impartial and not be tainted by any political and partisan pressures.

When the League heard reports that the heads of some of them being muzzled – for example, that they could not freely introduce bills to strengthen laws to make them more effective nor testify at hearings – we were alarmed. It was with great relief that, at the conclusion of a hearing on campaign spending bills, the chair of the Senate Judiciary & Hawaiian Affairs Committee, Senator Hanabusa, asked Robert Watada if it were true that he needed permission to testify, and that any legislation he wanted introduced needed to be submitted to the Department of Accounting and General Services for approval.

Based upon his replies, we understood that he did indeed need permission from DAGS, that his proposed legislation was amended by DAGS, that he needed approval for any personnel changes and for purchases of furniture and equipment. This was apparently true for the Elections Office as well. Chair Hanabusa noted the unusual absence this session of the Chief Elections Officer from all legislative hearings on elections bills.

With the passage of SB 183, the Senate made it clear that the Campaign Spending Commission and the Office of Elections should have independence; the bill provides that they are allowed to communicate directly with the Governor or the Legislature, make all personnel decisions, and purchase all office equipment.

A joint hearing by the Senate Judiciary & Hawaiian Affairs Committee and the House Judiciary Committee was scheduled for 3:00 p.m. on March 2, on separate bills proposing to transfer these agencies from DAGS to the State Judiciary; however, because of the length of the House Judiciary Committee's hearing on the legislation mentioned at the beginning of this article, the joint hearing was pushed back for almost six hours. Although I'd sent in testimony on each bill – supporting SB 203 HDI and opposing HB 267 HD2 – I was not present to give oral testimony.

My opposition to HB 267 was based on: 1) the objections by the Ethics Commission, currently attached to the State Auditor's Office, as one of the agencies to be transferred even though it has always enjoyed independence; and 2), the bill's providing for a change in the way members of the Judicial Council are appointed.

The Judicial Council is a body that is created by the Supreme Court to advise it on judiciary matters as well as to screen applicants for the Ethics Commission and the Campaign Spending Commission. In doing so, it nominates two applicants for each open position from which the Governor makes his/her appointment. This bill would change the makeup of the Judicial Council: Five members by the Senate President, Five members by the Speaker of the House, and Five members by the Chief Justice of the Supreme Court. I objected to the injecting of politics into the selection of Judicial Council members and felt that it threatened the separation of powers doctrine.

In my testimony on the Senate version, I did applaud the inclusion of the Elections Appointment and Review Panel which is the body that hires, evaluates, and rehires or fires the Chief Elections Officer in those agencies being transferred to the Judiciary. I feel that the members of the panel should be screened and nominated by the Judicial Council in the same way that members of the Ethics Commission and the Campaign Spending Commission are nominated for final selection by the Governor. The panel should be a non-partisan body as opposed to a bi-partisan body.

S.B. 183 passed third reading in the Senate and moved over to the House. H.B. 267 passed third reading in the House over the objections of all of the Republicans and crossed over to the Senate. As Representative Colleen Meyer in opposition to the bill on the House floor, "When the State Attorney General, the State Judiciary, the Ethics Commission, and the League of Women Voters oppose it, they must know something."

The two bodies finally selected HB 267 as the vehicle to try to preserve the independence of the watchdog agencies. First, the Senate Committee on Judiciary & Hawaiian Affairs amended HB 267 to incorporate the provisions of SB 183; then the Senate Ways and Means Committee decided that those committees should be attached to DAGS after all. It also changed the Elections and Appointment and Review Panel to a nine-member commission with the President of the Senate and the Speaker of the House and the minority caucus leaders each making two appointments. The ninth member would be selected by the eight commissioners.

Governor Lingle vetoed HB 267, but the Legislature managed to override the veto. Thus, our battle to change the appointing authority of this new commission will continue in upcoming legislative sessions.

To Keep Democracy Alive

The preservation of a democratic society needs the vigilant attention of everyone to prevent the slow erosion of citizens' civil rights, to maintain access to government information, to promote the right to participate in policy formation, and to increase transparency in governmental processes and activities.

Jean Aoki

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