Communication 07 Supreme Court Opinion

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120 P.3d 217 Page 21 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) the reapportionment plan is “indicative of the good IT IS HEREBY ORDERED that the motion for faith effort of the Commission to achieve equal rep-reconsideration is granted as to the request to strike resentation by keeping the deviations at no more than the reference to the Jacobson testimony, and, there- FN12 five percent.” Hence, this point is without merit. fore, the paragraph beginning on line 12 from the top of page 22 [page 328, 120 P.3d page 227] of the opinion shall be amended by striking the words after FN12. Using the total population base, the “Commission” on line 12 through line 20 and striking deviation percentage of each district does the word “then” on line 21, leaving the sentence be- not exceed 5% and, therefore, does not ex- ginning on line 12 to read: ceed the 10% threshold. For at the second meeting of the Commission, VI. Commissioner Mark Van Pernis made a motion to [4] In their fifth argument, Appellants maintain “include all people”: “[A]ll the people that the cen- that “[a]lthough this Court states that [Appellants] did sus counted is included because, whether they vote not assert that the County Reapportionment Commis- or not, or whether they're young or old, military or sion's plan is invalid, if the plan is constitutionally not, they all use county services, they all pay taxes defective, the plan cannot be valid.” But the opinion, in some form or shape and they all need representa- in addition to pointing out that Appellants did not tions.” argue that the use of the wrong population base alone invalidated the Commission's plan, also observed that “[e]ven if Appellants had argued that the plan was The Clerk of the Court is directed to incorporate void for being based on the wrong population, ... the the foregoing changes in the original opinion and language of Charter section 3-17(f)(4) would bring us take all necessary steps to notify the publishing agen- back to the constitutional question.” Op. at 325, 120 cies of these changes. P.3d at 224. Accordingly, the opinion proceeds to address the question of whether, “when nonresident IT IS FURTHER ORDERED that the motion is military personnel, their dependents, and university denied in all other respects. students are excluded from the population base, ‘de- viations emerge in the [r]edestricting [p]lan that ex- Dissenting Opinion by NAKAYAMA, J., in which ceed constitutional limits.’ ” Id. Thus, the opinion is MOON, C.J., Joins. in agreement with Appellants' contention that if the I write to emphasize that, in contrast to the ma- plan was constitutionally defective, it would be inva- jority's opinion, Riley v. Baxter County Election lid. A majority of this court did “not believe that that Commission, 311 Ark. 273, 843 S.W.2d 831 [was] the case, however.” Id. Such matters, then, (Ark.1992), in no way supports the conclusion that were not “overlooked” or “misapprehended.” the 2001 County of Hawai‘i Reapportionment Com- mission (Commission) followed a “rational” redis- VII. tricting policy that justifies what is otherwise an un- Finally, Appellants argue that “[i]n the usual constitutional redistricting plan. case, this Court would remand the case to the trial court for further proceedings[,]” but because “the Riley is clearly distinguishable. At issue in that trial judge is no longer sitting and the County Reap- case was a county redistricting plan drawn by the portionment Commission has been dissolved[,] ... this election commission of Baxter County, Arkansas. Court should simply reverse the trial court's judgment Having relied on an accurate population count, the **236 *337 below[, and u]pon such reversal, the par- commission was aware that its plan, which exhibited ties may then apply to this Court for further relief as a total population deviation of 10.149 percent, was the circumstances may warrant.” In light of the dis- presumptively unconstitutional. Id. at 832. position herein, these matters need not be addressed, and in any event, appear irrelevant to the decision. When the plan's constitutionality was subse- quently challenged, commission members stepped VIII. forward to justify the heightened population devia- Therefore, based on the foregoing, tion. Testimony from those members indicated that, while endorsing the “overriding principle ... [of] © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.