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120 P.3d 217 Page 14
<br />108 Hawai'i 318, 120 P.3d 217
<br />(Cite as: 108 Hawai'i 318, 120 P.3d 217)
<br />pursue. Section 3-17(f) of the Hawai‘i County Char-NAKAYAMA, J., Dissenting, With Whom MOON,
<br />ter (Charter)-which enumerates the only public poli-C.J., Joins.
<br />cies the Commission may validly consider in fashion-
<br />ing district boundaries-states:
<br />Plaintiffs-Appellants Citizens for Equitable and
<br />Responsible Government, Brenda J. Ford, Stanley A.
<br />(1) No district shall be drawn to unduly favor or
<br />Boren, Floyd H. Lundquist, Marlene E. Lundquist,
<br />penalize a person or political faction; and Ronald C. Phillips (collectively, Appellants) filed
<br />a motion for reconsideration (the motion) of this
<br />court's July 22, 2005 published opinion (the opinion),
<br />(2) Insofar as possible, districts should be contigu-
<br />in which a majority of this court affirmed the deci-
<br />ous and compact;
<br />sion of the circuit court of the third circuit (the court)
<br />reapportionmentCounty
<br />to uphold the plan of the
<br />(3) District lines shall, where possible, follow per-
<br />HawaiiReapportionment
<br />of 2001 Commission (the
<br />manent and easily recognizable features;
<br />Commission). Citizens for Equitable & Responsible
<br />Gov't, at 329, 120 P.3d at 228.
<br />(4) Districts shall have approximately equal resi-
<br />dent populations as required by applicable constitu-
<br />I.
<br />tional provisions.
<br />In the motion, Appellants argue that (1) this
<br />court cannot substitute its findings for that which the
<br />Charter of the County of Hawai‘i § 3-17(f)
<br />Commission and the court should have, but did not,
<br />(1990). Inasmuch as subsection (4), under our inter-
<br />make, (2) this court cannot refer to the public testi-
<br />pretation today, forbids the inclusion of non-resident
<br />mony of Julie Jacobson, a person who is not a mem-
<br />students and military personnel in the “resident popu-
<br />ber of the Commission, as evidence of the Commis-
<br />lation” count, the Charter's stated policy is to exclude
<br />sion's unarticulated intent, (3) this court's substituted
<br />these groups from the Commission's redistricting
<br />justification for deviations in excess of 10% is no
<br />calculus. To allow the Commission to surreptitiously
<br />justification at all, (4) lack of good faith and honesty
<br />establish the district boundaries based on where these
<br />was subsumed in Appellants' assignment of error, (5)
<br />excluded groups reside-in short, to employ, de facto,
<br />the plan is invalid if the plan is constitutionally defec-
<br />a “total population” count such as that used in this
<br />tive, and (6) this court's conclusion that the court and
<br />case-undermines subsection (4)'s fundamental pur-
<br />the Commission erred in using the wrong population
<br />**229 *330
<br />pose of equalizing the populations
<br />base, means that it should simply reverse the court's
<br />among the districts without regard to non-resident
<br />judgment. Accordingly, Appellants request that this
<br />students and military personnel.
<br />court (1) strike any reference to Jacobson's testimony,
<br />(2) strike all references to the purported justification
<br />Because no authorized public policy justifies the
<br />of the Commission for offering a plan with deviations
<br />erosion of equal representation that the current plan
<br />in excess of 10%, (3) reverse the court's judgment,
<br />engenders, the plan fails the constitutional test set
<br />and (4) invite the parties to submit further pleadings
<br />forth in Brown v. Thomson and Mahan v. Howell.
<br />as may be appropriate to the amended decision. For
<br />FN1
<br />Accordingly, I must dissent.
<br />the reasons discussed herein, the motion for recon-
<br />sideration is granted in part as to the reference to the
<br />FN1. The County notes that the reappor-Jacobson testimony, but denied in all other re-
<br />FN1
<br />tionment plan's total deviation figure could spects.
<br />be brought below ten percent by shifting
<br />“less than 200 persons” to other districts.
<br />FN1. Hawai‘i Rules of Appellate Procedure
<br />That remedy would seem the better course
<br />Rule 40(b) (2005) provides that a motion for
<br />than the majority's proposal to hold in place
<br />reconsideration “shall state with particularity
<br />a reapportionment plan that is based on an
<br />the points of law or fact that the moving
<br />inaccurate population count.
<br />party contends the court has overlooked or
<br />misapprehended, together with a brief argu-
<br />MOTION FOR RECONSIDERATION ment on the points raised.”
<br />LEVINSON, ACOBA, and DUFFY, JJ.; With
<br />© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
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