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120 P.3d 217 Page 15
<br />108 Hawai'i 318, 120 P.3d 217
<br />(Cite as: 108 Hawai'i 318, 120 P.3d 217)
<br />II.motion that Jacobson later retracted the statement
<br />[1] Addressing first Appellants' second point, the quoted in the opinion by rejecting the Commission's
<br />challenge to Jacobson's testimony, Appellants main-plan. It should be noted that Appellants did not chal-
<br />tain that this court “relie[d] upon the testimony of a lenge Jacobson's testimony in their reply brief, even
<br />person who is NOT a member of the Commission[, though Defendants-Appellees, County of Hawai‘i,
<br />Jacobson,] to justify the ... Commission's action be-County Clerk, County of Hawai‘i, and Lloyd Van De
<br />low” and that “[s]uch reliance is inconsistent with” Car, Chairman of the Commission (collectively,
<br />Dines v. Pacific Insurance Co., 78 Hawai‘i 325, 893 County Appellees), cited to Jacobson's testimony in
<br />P.2d 176 (1995). (Capitalization and emphasis in their answering brief. Appellants, therefore, failed to
<br />original.) However, the opinion does not state that raise Jacobson's supposed retraction of the quoted
<br />Jacobson was a member of the Commission, but statement that they tardily do now.
<br />identifies her as a Hawai‘i County Councilmember. It
<br />may be assumed that Jacobson's testimony apprised
<br />However, it appears that Jacobson had recanted
<br />the Commission of how using a total population base
<br />the quoted statement. Appellants state that at the
<br />can achieve inclusiveness and equal representation.
<br />Commission's final meeting on December 18, 2001,
<br />The opinion refers to Jacobson's testimony as fol-
<br />Jacobson “rejected her own statement.” (Emphasis in
<br />lows:
<br />original.) Upon review of the record on appeal, it
<br />appears that Jacobson's December 18, 2001 testimony
<br />FN3
<br />[W]e cannot say that no rational basis underlay the was never made part of the record. Appellants
<br />10.89% deviation because, akin to the approach have since attached the subsequent Jacobson testi-
<br />exemplified by the commission member's testi-mony to their motion as Appendix 32, as well as a
<br />mony in Riley, the Commission in the instant case, declaration by their attorney, which certifies that the
<br />by using “total” population, evidenced an intent to attached minutes “are public documents ... that are
<br />achieve inclusiveness and equal representation. found on the County of Hawaii website at Hawaii-
<br />county.com.” Although the subsequent Jacobson tes-
<br />timony need not be considered by this court, seeOrso
<br />...
<br />v. City & County of Honolulu, 55 Haw. 37, 38, 514
<br />P.2d 859, 860 (1973) (“[A] question involving evi-
<br />For at the second meeting of the Commission,
<br />dence not in the record cannot be reviewed on ap-
<br />**230 *331
<br />Hawai‘i County Councilmember Julie
<br />peal.”) (citation omitted), in light of the fact that Ja-
<br />Jacobson testified in favor of “using the population
<br />cobson retracted her statement, a fact only now raised
<br />as the basis for the districting,” stating that,
<br />by Appellants, this court grants Appellants' request to
<br />FN4
<br />strike any reference to the Jacobson testimony. In
<br />each human being has needs for the government
<br />doing so we observe that it is a fundamental and ele-
<br />serves [sic] and it doesn't matter if you're one
<br />mentary proposition that counsel is obligated to pre-
<br />day old, if you're 99 years old, if you vote or
<br />sent an accurate record on appeal.
<br />don't vote, or any other of those variables ... each
<br />person needs to be considered and I think espe-
<br />FN3. County Appellees attached excerpts
<br />cially with the complexity
<br />from the December 18, 2001 transcripts to
<br />their memorandum in opposition to Appel-
<br />of infrastructure issues, that we deal with, that's
<br />lants' motion for change of venue, but Ja-
<br />why it's important.
<br />cobson's testimony on pages 9-13 was not
<br />included.
<br />FN2
<br />Opinion at 328, 120 P.3d at 227.
<br />FN4. In their response to the motion, County
<br />FN2. Appellants attach Jacobson's June 22,
<br />Appellees maintain that Jacobson's testi-
<br />2001 testimony to their motion as Appendix
<br />mony “was given at an earlier meeting of the
<br />31, but the testimony is already part of the
<br />Commission before any particular plan was
<br />record.
<br />before it. She later spoke in support of a par-
<br />ticular plan but did not specifically address
<br />Also, Appellants state for the first time in the the population issue. What she was clearly
<br />© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
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