Communication 07 Supreme Court Opinion

Home

120 P.3d 217 Page 20 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) not assert that the Commission failed to con- sider the other valid criteria as mandated Appellants' withdrawal of the argument that the under the Charter. As the opinion observes, redistricting plan submerges communities of interests “related objections were apparently waived into larger districts where different socio-economic when Appellants stipulated to withdraw the interests predominate precludes a resurrection of that claims that the Commission failed to use a argument on appeal, especially on a motion for re- ‘rational or objective methodology’ and consideration.SeeAmfac, Inc. v. Waikiki Beach- ‘wrongfully submerged communities of in- comber Inv. Co., 74 Haw. 85, 114, 839 P.2d 10, 27 terest into larger districts,’ ... thereby aban- (1992) (“The purpose of a motion for reconsideration doning any claim that the Commission in- is to allow the parties to present new evidence and/or correctly applied the other three criteria in arguments that could not have been presented during Charter section 3-17(f).” Op. at 328, 120 the earlier adjudicated motion.”); Briggs v. Hotel P.3d at 227. Corp., 73 Haw. 276, 287 n. 7, 831 P.2d 1335, 1342 n. 7 (1992) (“We again remind litigants that a motion for reconsideration is not the time to relitigate old V. matters.”). Hence the alleged “vote dilution” of Puna In their fourth point, Appellants disagree with residents is not properly before this court, having this court's statement that “Appellants do not argue, been withdrawn by stipulation. This court, then, did nor point to evidence in the record, that the Commis- not “overlook” the “fracturing” of the judicial district sion did not ‘make an honest and good faith effort to of Puna because it was not a part of the appeal. construct districts ... of equal population as is practi- cable[.]’ ” Op. at 328, 120 P.3d at 227 (citation omit- ted). Appellants assert in the motion that the lack of [13] As to Appellants' contention that “the only good faith and honesty argument was “subsumed” in articulated reason found in the County Reapportion- their assignment of error and incorrectly assert that ment Commission's records” was “administrative [FN11] they “argued in their Opening Brief [ ... [that the convenience,” as discussed supra, it must be reiter- Commission] made no effort, even when informed of ated that (1) Commissioner Van Pernis's “motion to the risks that it was taking by using the wrong popu- ‘include all people,’ ” which was “put to a vote and lation base, [sic] the Commission proceeded anyway- carried, evidenc[ed] that the Commission was moti- because of administrative convenience, because it vated by inclusiveness as opposed to a discriminatory was too difficult and time-consuming to do other- purpose[,]” Op. at 328, 120 P.3d at 227 and (2) the wise.” opinion cites to three additional criteria for redistrict- ing mandated by section 3-17(f) of the Charter re- FN11. The term “convenience” first ap- quired to be considered by the Commission. See id. at 328, 120 P.3d at 227. Moreover, the “administrative peared in the reply brief, not the opening convenience” argument was not presented as a dis-brief as Appellants state, and it does not ap- FN10 cernible legal argument in Appellants' briefs and, pear Appellants used the term “administra- **235 *336 hence, need not have been addressed. tive convenience.” See supra note 10. Norton v. Admin. Dir. of the Court, 80 Hawai‘i 197, 200, 908 P.2d 545, 548 (1995) (disregarding a par- The fact remains, however, that Appellants did ticular contention for lack of a “discernible argument not expressly make a “lack of good faith and hon- in support of that position, in violation of Rule esty” argument. Moreover, even if this court were to 28(b)(7) of the Hawai‘i Rules of Appellate Proce- accept Appellants' contention that such an argument dure”). was “subsumed” in its assignment of error, it would not alter this court's conclusion that “[w]hat remains FN10. At the end of their reply brief, Appel-is Appellants' conclusory statement that the ‘Com- lants stated that “[c]onvenience, not substan-mission's records do not reflect any evidence that tive law, dictated the outcome of the final justifies the [C]ommission's action to adopt a Redistricting Plan.” This statement did not [r]edistricting [p]lan that has deviations that exceed establish that the Commission was guided the ideal mean by more than 10%.’ ” Op. at 328, 120 by administrative convenience in creating P.3d at 227. Indeed, as County Appellees observe, legislative districts. Again, Appellants did the Commission's inclusion of the deviation charts in © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.