State Senate passes bill restoring procedure for initiating felony cases

To address the issues raised in the Hawaiʻi Supreme Court opinion in State v. Obrero, the state Senate passed Senate Bill 36 on third reading Thursday, according to a news release.

It now moves to the state House of Representatives for consideration.

The bill specifies that a person may be tried and sentenced for certain alleged felony offenses through the complaint and preliminary hearing process, indictment by a grand jury, or by written information. 

It also clarifies that multiple attempts to initiate a felony prosecution for the same offense, either through the same initial charging method, or an alternative method, or in different forums, shall not be permitted except in certain circumstances.

The state Senate, led by Judiciary Chair Karl Rhoads (District 13 – Dowsett Highlands, Pu‘unui, Nu‘uanu, Pacific Heights, Pauoa, Punchbowl, Pālama, Liliha, ʻIwilei, Chinatown, and Downtown), worked with the four county prosecutors, the State Attorney General’s Office, and the State Public Defenders’ Office during the interim to draft the bill.

“Leading up to this legislative session, the Senate worked diligently with the relevant stakeholders to find a solution to the concerns expressed in the State v. Obrero decision,” Rhoads said in the release. “We believe S.B. 36 adequately addresses the issues raised by county prosecutors, and we look forward to advancing this bill to the State House for further consideration and approval.”

The Sept. 8, 2022, State v. Obrero decision by the state Supreme Court held that despite 40 years of established law charging felony cases via complaint and preliminary hearing was no longer allowed.

The court’s decision was based on a single statute, Section 801-1 of the Hawaiʻi Revised Statutes (HRS) , that remained unchanged since 1905 and was inadvertently not amended.

In 1982, amendments to Article I, Section 10 of the Hawaiʻi State Constitution were proposed by the legislature and approved by voters to expressly allow charging via complaint and preliminary hearings. In subsequent years, multiple state laws were amended to comport with charging felonies via complaint/preliminary hearings. The Hawaiʻi Supreme Court, in 1983, established its own court rules setting out the requirements for charing felonies via complaint and preliminary hearings.

SB 36 if approved would resolve these issues.