Communication 07 Supreme Court Opinion

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120 P.3d 217 Page 8 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) county for a period of time beyond their date of “resident populations” to be plain and un- graduation would not be considered residents. Their ambiguous, we need not examine the 1990 presence in Hawai‘i County is primarily for educa-charter commission's records to ascertain the tional purposes, which is “transitory in nature.” county electors' intent in adopting the Likewise, ordinarily the transitory nature of military phrase. In any event, Appellants maintain personnel from outside Hawai‘i County is apparent. that aside from evidence that the charter Normally, military personnel and their dependents commission “clearly rejected the use of ‘reg- are temporarily stationed in the county by the United istered voters' as a base because that provi- States military. Military personnel may have little say sion was already under [legal] attack[,] ... in deciding the location of their assignment. As a [t]he rest of the charter commission's re- result, generally speaking, members of the military cords is silent.” County Appellees do not are in Hawai‘i County involuntarily, as opposed to cite to the charter commission's records to persons who choose to live in the county. Seesupport the Commission's interpretation. Carpenter v. Hammond, 667 P.2d 1204, 1211 Hence, there is no instructive “legislative” (Alaska 1983) (recognizing the “involuntary nature history concerning the term “resident popu- of the military member's assignment to [a] state”). lations.” The Charter employs the phrase “resident popu-VI. lations” which indicates that the drafters of the Char-While we must interpret the term “resident popu- ter intended to limit the population base to residents lations,” we note that no dispute is raised by the par- of Hawai‘i County. Those who live in the county ties as to whether the persons designated as residents temporarily for educational purposes or those who or nonresidents were properly denominated as such. live in the county involuntarily because ordered to do Appellants note that “in 2001, State officials had ac- so would seemingly lack a present intent to remain in cess to an improved database and software program the county, rendering their stay “transitory in nature.” and had the ability to collect data that enabled state FN5 Logically, the drafters of the Charter would not officials to identify and locate nonresident students, have modified the word “population” by the adjective nonresident military personnel and nonresident mili- “resident” or, on the other hand, would have em-tary dependents with reasonable accuracy.” (Empha- ployed the phrase “total population” had they in-ses omitted.) Thus, argue Appellants, “[i]t was also tended to include nonresident college students and possible to identify these same individuals for the nonresident military personnel and their dependents purpose of establishing county council seats for the in the population base. County of Hawaii County Council.” FN5. Obviously, a person who otherwise os- County Appellees do not deny the availability of tensibly falls within such categories but es-such technology nor challenge its feasibility. In fact, tablishes a present intent to remain in the they apparently relied on the State's database and county and exhibits indicia that his or her computer program to support their motion for partial presence is something other than merely summary judgment. In an affidavit attached as “Ex- transitory may establish resident status. See hibit D” to County Appellees' motion for partial Black's Law Dictionary at 1309. summary judgment, David J. Rosenbrock, data proc- essing coordinator for the State of Hawai‘i Office of Elections, stated that “his office provided population Accordingly, we hold that the phrase “resident data to the County of Hawaii Reapportionment populations” found in the Charter excludes nonresi- Commission,” derived from “the federal census, the dent university students and nonresident military per- United States Military and from the University of sonnel and their dependents from the population base Hawaii at Hilo.” Attached as “Exhibit 1” to the affi- of the county council reapportionment plan. The davit were three charts showing (1) total population **223 *324 court, therefore, was wrong to conclude with no extractions, (2) total population with non- that the Commission's inclusion of these nonresidents resident students and nonresident military personnel FN6 was proper. extracted, and (3) total population with nonresident students, nonresident military personnel and their FN6. Inasmuch as we determine the phrase © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.