Communication 07 Supreme Court Opinion

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120 P.3d 217 Page 13 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) natory one. Appellants do not contend that the Com-added.) SeeHawaii Providers Network, Inc. v. AIG mission failed to consider other redistricting criteria Hawaii Ins. Co., 105 Hawai‘i 362, 368 n. 14, 98 P.3d under the Charter or that such criteria would not sup-233, 239 n. 14 (2004) (“[W]here the decision below port a slightly greater deviation than the 10% prima is correct it must be affirmed by the appellate court facie threshold. It should be noted that related objec-though the lower tribunal gave the wrong reason for tions were apparently waived when Appellants stipu-its action.” (Quoting Agsalud v. Lee, 66 Haw. 425, lated to withdraw the claims that the Commission 430, 664 P.2d 734, 738 (1983).));Poe v. Hawai‘i failed to use a “rational or objective methodology” Labor Relations Bd., 87 Hawai‘i 191, 197, 953 P.2d and “wrongfully submerged communities of interest 569, 575 (1998) (“Where the circuit court's decision into larger districts,” see supra note 3, thereby aban-is correct, its conclusion will not be disturbed on the doning any claim that the Commission incorrectly ground that it gave the wrong reason for its ruling.” applied the other three criteria in Charter section 3-(Quotation marks and citation omitted.)). Accord- 17(f). ingly, the court's January 24, 2003 final judgment is affirmed. Finally, we observe that Appellants do not argue, nor point to evidence in the record, that the Commis- Concurring and Dissenting Opinion by sion did not “make an honest and good faith effort to NAKAYAMA, J. in which MOON, C.J., Joins. construct districts ... of equal population as is practi-I respectfully dissent from the majority's holding reapportionment County cable [,]” Reynolds, 377 U.S. at 577, 84 S.Ct. 1362 that the plan for the of HawaiCountyCounty that the plan has “ ‘a built-in bias tending to favor ‘i ( ), as crafted by the 2001 of HawaiReapportionment particular political interests or geographic areas [,]’ ” ‘i Commission (Commis- Brown, 462 U.S. at 844, 103 S.Ct. 2690 (quoting sion), presents no equal protection violation. Abate, 403 U.S. at 187, 91 S.Ct. 1904), or that the Commission's redistricting process was “taint [ed]” reapportionment As the majority notes, a plan with “arbitrariness,” id. at 843, 91 S.Ct. 1904. What that exhibits a total population deviation of more than remains is Appellants' conclusory statement that the ten percent presumptively violates the right to equal “Commission's records do not reflect any evidence representation secured under the fourteenth amend- that justifies the [C]ommission's action to adopt a ment to the United States Constitution. Brown v. [r]edistricting [p]lan that has deviations that exceed Thomson, 462 U.S. 835, 842-843, 103 S.Ct. 2690, 77 the ideal mean by more than 10%.” Therefore, on the L.Ed.2d 214 (1983) (citing Swann v. Adams, 385 foregoing bases and under the specific circumstances U.S. 440, 444, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967)). of this case, we hold that, ultimately, the court did not That presumption of illegality may only be dispelled err in concluding that “there was no unconstitutional by showing that rational public policies outweigh the deviation in the population count in the county coun- ill effects of an apportionment scheme that materially cil districts as set forth in the 2001 council redistrict- enhances the representational power of some at the ing plan adopted by the ... Commission.” expense of others. Mahan v. Howell, 410 U.S. 315, 326, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973). **228 *329 X. Based on the foregoing, the Commission's erro- The Commission's reapportionment plan in this neous inclusion of nonresident students and military case is presumptively unconstitutional under Brown personnel and their dependents in the population base v. Thomson because it reflects a total population de- for reapportionment of Hawai‘i County council dis- viation of 10.89 percent. The excessive deviation was tricts did not ultimately result in an unconstitutional caused by the Commission's error in counting non- deviation under its reapportionment plan. Although resident students and military personnel when calcu- we do not agree with the court that the Commission's lating the ideal mean population for each of the voter population base was correct, we affirm the court's districts. decision upholding the Commission's plan because the plan complies with the mandate of Charter sec- I part company with the majority because the tion 3-17(f)(4) that the districts be comprised of “ap- heightened deviation flowing from that error cannot, proximately equal resident populations as required by asMahan v. Howell requires, be rationalized under applicableconstitutional provisions.” (Emphases any public policy the Commission was authorized to © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.