HomeMy WebLinkAboutCOM 1121.003 2006-2008
BRENDA J. FORD `"W, Phone: (808) 326-5684
Council Member Fax: (808) 329-4786
District 7 - Central Kona .i E-Mail: bford@co.hawaii.hi.us
oi'MiY
HAWAII COUNTY COUNCIL o
County of Hawai `i
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Kailua Trade Center Qr7 -=Dfl
75-5706 Hanama Place, Suite 109 x~) Jv
Kailua-Kona, Hawaii 96740 Z 1--~
DATE: April 16, 2008 L -
TO: Pete Hoffmann, Chairman, and cam
Members of the Hawaii County Council r
FROM: Brenda J. Ford, Council Member 41 yp-,0
RE: Requested information related to Bill 27U6
Attached please find court document copies from Case No. 30002-1-0092, Citizens for Equitable and
Responsible Government vs. County of Hawaii as requested by Councilmember J Yoshimoto at the
April 8, 2008 Public Works and Intergovernmental Relations meeting. Please provide to all council
members as soon as possible.
Thank you.
Attachments
BJF/dkr
Comm. No. ~1 •
Ref. To: Pfeseated
Serving the Interests of the People of Our Island Ref. Dote QP12 2 2=
Hawaii County Is An Equal Opportunity Provider And Employer
MILO SCC LtGAL VOC5 dW 9'61 (493 04115 '08 16:12 N0391 02/
MICHAEL J. MATSVKAWA, lss5-o
Territorial Centre, Suite 201
7S-5751 Kuakini Highway ?c."d3 JAN 24 PH 3.27
Kailua-Kona, Fawaii 96740
TeleghOne No.: (808) 329-1385
AT C
Attornay for Plaintiffs ]MR0 CIRCU1TLCOU T
STATE OF HAWAII
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
CITIZENS FOR EQUITABLE AND } CIVIL NO. 02-1-0092 (HILO)
RESPONSIBLE GOVM0=NT, a } (Declaratory Judgment)
Hawaii nonprofit corporation; )
BRENDA J, FORD, SANDRA W, }
SCARR; STANLEY A. BOREN; FLOYD } FINAL JUDGMENT
H. LUNDQUIST, MARLENE E. )
LUNDQUIST; F.ONAI,D C. PHILLIPS: }
BMRLY A. BYOUM, )
Plaintiffs, )
)
VS. }
COUNTY OF HAWAII; COUNTY CLERK, }
COUNTY OF HAWAII; LtDYD VAN DE }
CAR, CHAIRMAN, COUNTY OF HAWAII )
2001 REAPPORTIONMENT
COM xsSION, }
}
Defendants. )
)
a~osoa~e-e~~ttnai
FIN L JUD is
Judgment is hereby entered in favor of Defendants County
of Hawaii; County Clark, County of Hawaii, and Lloyd Van de Car.
Chairman, County of Hawaii 2001 Reapportionment Commission and
against Plaintiffs Citizens for. Equitable and ResponsLblc
government, Brenda J. Ford, Sandra W. Scarr, Stanley A. Boren,
Floyd H. Lundquist, Marlene E. Lundquist, Ronald C. Phillips and
Beverly A. Byouk.
Pursuant to the Stipulation entered on January 6, 20031
there are no other issues or claims left for dispositin"
17 08 08:34a
ni~u x.4 LMAL VVl.J WtS YW (W5 04116 '08 16:12 NO.791 031
DATED: H11o0 Hawaii, ?JAN 2 2093
Riki & Amew (seal)
JUDGE OF THE ABOVE-ENTITLED COURT
APPROVED AS TO FORM:
PATRICIA'! X. O'TOOLE
L43TER J. ISHADO
Attorneys for Defendants COUNTY OF
HAwArtis Comm CLERK, COUNTY OF
KAWAI•I and LLOYD VAN OE CARD
CHAIRMAN, COUNTY OF HAWAIOi 2001
REAPPORTIONMENT COMMISSION
_.~r -
Final Judgment
Citizens for Equitable and Responsible GOVOrnlOnt, et al. V.
County of Hawaii, et•al., Civil go. 02-1-0092 (Hilo)
In the circuit court of the Third Circuit, State of Hawaii
2
NO. 29900
IN THE SUPREME COURT OF THE STATE OF HAWAII
CITIZENS FOR EQUITABLE AND RESPONSIBLE GOVERNMENT,
a Hawaii nonprofit corporation; BRENDA JOYCE FORD,
SANDRA WOOD SCARR and STANLEY ALFRED BOREN, Petitioners,
VS.
COUNTY CLERK, COUNTY OF HAWAII; LLOYD VAN DE CAR,
CHAIRMAN, COUNTY OF HAWAII 2001 REAPPORTIONMENT COMMISSION;
and COUNTY OF HAWAII, Respondents.
ORIGINAL PROCEEDING
ORDER
(By: Moon, C.J., Levinson, Nakayama,
Ramil, and Acoba, JJ.)
Upon consideration of the petition for a writ of
mandamus filed by Citizens for Equitable and Responsible
Government, Brenda Joyce Ford, Sandra Wood Scarr, and Stanley
Alfred Boren, it appears that: (1) Petitioners ask this court to
order the respondents to set aside the Hawaii County
reapportionment plan filed on December 28, 2001 and to order
respondents to accept a new reapportionment plan prepared by a
special master appointed by this court; (2) mandamus relief is
available to compel an official to perform a duty allegedly owed
to an individual only if the individual's claim is clear and
certain, the official's duty is ministerial and so plainly
prescribed as to be free from doubt, and no other remedy is
available. Barnett v. Broderick, 84 Hawai'i 109, 929 P.2d 1359
(1996); and (3) Petitioners fail to meet the standard for the
issuance of a writ of mandamus. Therefore,
IT IS HEREBY ORDERED that the petition for writ of
mandamus is denied without prejudice to Petitioners seeking
relief in the circuit court.
DATED: Honolulu, Hawai'i, February 21, 2002.
2
***FOR PUBLICATION***
DISSENTING OPINION BY NAKAYAMA, J.,
IN WHICH MOON, C.J., JOINS
I write to emphasize that, in contrast to the majority's opinion, Riley v. Baxter County Election
Commission, 843 S.W.2d 831 (Ark. 1992), in no way supports the conclusion that the 2001
County of Hawaii Reapportionment Commission (Commission) followed a "rational"
redistricting policy that justifies what is otherwise an unconstitutional redistricting plan.
Rile is clearly distinguishable. At issue in that case was a county redistricting plan drawn by the
election commission of Baxter County, Arkansas. Having relied on an accurate population count,
the commission was aware that its plan, which exhibited a total population deviation of 10.149
percent, was presumptively unconstitutional. Id. at 832.
When the plan's constitutionality was subsequently challenged, commission members stepped
forward to justify the heightened population deviation. Testimony from those members indicated
that, while endorsing the "overriding principle [of] equal representation," the commission
also believed that the plan should "keep to the old district lines as much as possible to avoid
inconveniencing the voters." Id. at 833. The rational policy of "voter convenience," proffered by
the commission in formal testimony, thus justified the plan's incremental erosion of equal
representation. Id.
Rile accordingly stands for the far from novel proposition that, where a redistricting plan's total
population deviation exceeds 10 percent, the redistricting authority must step forward and
articulate some rational justification for the deviation. See Voinovich v. Quilter, 507 U.S. 146,
161 (1993). Riley does not address the far different factual situation at issue here, where a
redistricting authority, in mistaken reliance on an inaccurate population count, formulates a
redistricting plan that was never intended to be presumptively unconstitutional. Neither Rik y,
nor for that matter, any of the other cases cited by the majority, endorses the majority's
contention that a presumptively unconstitutional redistricting plan may be "rationalized" when
the redistricting authority, due to an unrealized computational error, inadvertently devises a plan
that exhibits a total population deviation in excess of 10 percent.
The dearth of authority supporting that contention is unsurprising. The fourteenth amendment to
the United States Constitution generally requires that a reapportionment plan's total population
deviation be less than 10 percent to pass constitutional muster. Brown v. Thomson, 462 U.S.
835, 842-843 (1983). Nonetheless, because "[m]athematical exactness or precision is hardly a
workable constitutional requirement," Reynolds v. Sims, 377 U.S. 533, 577 (1964), the
fourteenth amendment tolerates a limited degree of divergence "from a strict population
standard," provided that the plan as a whole is "based on legitimate considerations incident to the
effectuation of a rational state policy." Id. at 579. In other words, countervailing state interests
may, at times, permit a less than numerically equal redistricting plan, and a reapportionment
authority is not necessarily remiss in pursuing those interests at the expense of perfect numerical
equality among the voting districts.
The foregoing framework for assessing the constitutionality of a redistricting plan pragmatically
acknowledges that government must, in certain circumstances, be allowed to pursue redistricting
policies that incidentally enhance the representational power of some members of the electorate
at the expense of others. It was never intended to function as a curative device for excusing, after
the fact, a reapportionment authority's gross computational errors or inadvertent methodological
mistakes especially where, as here, those missteps were solely responsible for tainting the
redistricting plan with the presumption of unconstitutionality.
The right of equal representation is far too hard-won a liberty for its erosion to be justified so
blithely. Accordingly, I must dissent.
***FOR PUBLICATION***
CONCURRING AND DISSENTING OPINION BY NAKAYAMA, J.
IN WHICH MOON, C.J., JOINS
I respectfully dissent from the majority's holding that the reapportionment plan for the County of
Hawaii (County), as crafted by the 2001 County of Hawai' i Reapportionment Commission
(Commission), presents no equal protection violation.
As the majority notes, a reapportionment plan that exhibits a total population deviation of more
than ten percent presumptively violates the right to equal representation secured under the
fourteenth amendment to the United States Constitution. Brown v. Thomson, 462 U.S. 835, 842-
843 (1983) (citing Swann v. Adams, 385 U.S. 440, 444 (1967)). That presumption of illegality
may only be dispelled by showing that rational public policies outweigh the ill effects of an
apportionment scheme that materially enhances the representational power of some at the
expense of others. Mahan v. Howell, 410 U.S. 315, 326 (1973).
The Commission's reapportionment plan in this case is presumptively unconstitutional under
Brown v. Thomson because it reflects a total population deviation of 10.89 percent. The
excessive deviation was caused by the Commission's error in counting non-resident students and
military personnel when calculating the ideal mean population for each of the voter districts.
I part company with the majority because the heightened deviation flowing from that error
cannot, as Mahan v. Howell requires, be rationalized under any public policy the Commission
was authorized to pursue. Section 3-17(f) of the Hawaii County Charter (Charter) which
enumerates the only public policies the Commission may validly consider in fashioning district
boundaries states:
(1) No district shall be drawn to unduly favor or penalize a person or political faction;
(2) Insofar as possible, districts should be contiguous and compact;
(3) District lines shall, where possible, follow permanent and easily recognizable features;
(4) Districts shall have approximately equal resident populations as required by applicable constitutional
provisions.
Charter of the County of Hawaii § 3-17(f) (1990). Inasmuch as subsection (4), under our
interpretation today, forbids the inclusion of non-resident students and military personnel in the
"resident population" count, the Charter's stated policy is to exclude these groups from the
Commission's redistricting calculus. To allow the Commission to surreptitiously establish the
district boundaries based on where these excluded groups reside in short, to employ, de facto,
a "total population" count such as that used in this case undermines subsection (4)'s
fundamental purpose of equalizing the populations among the districts without regard to non-
resident students and military personnel.
Because no authorized public policy justifies the erosion of equal representation that the current
plan engenders, the plan fails the constitutional test set forth in Brown v. Thomson and Mahan v.
Howell. Accordingly, I must dissent 111
1. The County notes that the reapportionment plan's total deviation figure could be brought below ten percent by
shifting "less than 200 persons" to other districts. That remedy would seem the better course than the majority's
proposal to hold in place a reapportionment plan that is based on an inaccurate population count.
***FOR PUBLICATION***
IN THE SUPREME COURT OF THE STATE OF
HAWAII
---000---
CITIZENS FOR EQUITABLE AND RESPONSIBLE
GOVERNMENT,
a Hawaii nonprofit corporation; BRENDA J. FORD;
STANLEY A. BOREN; FLOYD H. LUNDQUIST;
MARLENE E. LUNDQUIST;
RONALD C. PHILLIPS, Plaintiffs-Appellants
and
BEVERLY BYOUK and SANDRA W. SCARR, Plaintiffs-
Appellees
vs.
COUNTY OF HAWAII; COUNTY CLERK, COUNTY
OF HAWAII; LLOYD
VAN DE CAR, CHAIRMAN, COUNTY OF HAWAII
2001
REAPPORTIONMENT COMMISSION, Defendants-
Appellees
NO. 25614
MOTION FOR RECONSIDERATION
(CIV. NO. 01-1-0092)
SEPTEMBER 22, 2005
ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR
RECONSIDERATION
(By: Levinson, Acoba, and Duffy, JJ.;
With Nakayama, J., Dissenting, With Whom Moon, C.J.,
Joins)
Plaintiffs-Appellants Citizens for Equitable and
Responsible Government, Brenda J. Ford, Stanley A.
Boren, Floyd H. Lundquist, Marlene E. Lundquist, and
Ronald C. Phillips (collectively, Appellants) filed a motion
for reconsideration (the motion) of this court's July 22,
2005 published opinion (the opinion), in which a majority
of this court affirmed the decision of the circuit court of the
third circuit (the court) to uphold the reapportionment plan
of the County of Hawaii 2001 Reapportionment
Commission (the Commission). Citizens for Equitable &
Responsible Gov't, No. 25614, slip op. at 25 (Haw. July 22,
2005).
1.
In the motion, Appellants argue that (1) this court cannot
substitute its findings for that which the Commission and
the court should have, but did not, make, (2) this court
cannot refer to the public testimony of Julie Jacobson, a
person who is not a member of the Commission, as
evidence of the Commission's unarticulated intent, (3) this
court's substituted justification for deviations in excess of
10% is no justification at all, (4) lack of good faith and
honesty was subsumed in Appellants' assignment of error,
(5) the plan is invalid if the plan is constitutionally
defective, and (6) this court's conclusion that the court and
the Commission erred in using the wrong population base,
means that it should simply reverse the court's judgment.
Accordingly, Appellants request that this court (1) strike
any reference to Jacobson's testimony, (2) strike all
references to the purported justification of the Commission
for offering a plan with deviations in excess of 10%, (3)
reverse the court's judgment, and (4) invite the parties to
submit further pleadings as may be appropriate to the
amended decision. For the reasons discussed herein, the
motion for reconsideration is granted in part as to the
reference to the Jacobson testimony, but denied in all other
respects
II.
Addressing first Appellants' second point, the challenge to
Jacobson's testimony, Appellants maintain that this court
"relic[d] upon the testimony of a person who is NOT a
member of the Commission[, Jacobson,] to justify the
Commission's action below" and that "[s]uch reliance is
inconsistent with" Dines v. Pacific Insurance Co., 78
Hawaii 325, 893 P.2d 176 (1995). (Capitalization and
emphasis in original.) However, the opinion does not state
that Jacobson was a member of the Commission, but
identifies her as a Hawaii County Councilmember. It may
be assumed that Jacobson's testimony apprised the
Commission of how using a total population base can
achieve inclusiveness and equal representation. The
opinion refers to Jacobson's testimony as follows:
[W]e cannot say that no rational basis underlay the 10.89%
deviation because, akin to the approach exemplified by the
commission member's testimony in Riley, the Commission in
the instant case, by using "total" population, evidenced an intent
to achieve inclusiveness and equal representation.
For at the second meeting of the Commission, Hawaii County
Councilmember Julie Jacobson testified in favor of "using the
population as the basis for the districting," stating that,
each human being has needs for the government serves [sic] and it
doesn't matter if you're one day old, if you're 99 years old, if you vote
or don't vote, or any other of those variables each person needs to
be considered and I think especially with the complexity of
infrastructure issues, that we deal with, that's why it's important.
Opinion at 22121
Also, Appellants state for the first time in the motion that
Jacobson later retracted the statement quoted in the opinion
by rejecting the Commission's plan. It should be noted that
Appellants did not challenge Jacobson's testimony in their
reply brief, even though Defendants-Appellees, County of
Hawaii, County Clerk, County of Hawaii, and Lloyd Van
De Car, Chairman of the Commission (collectively, County
Appellees), cited to Jacobson's testimony in their answering
brief. Appellants, therefore, failed to raise Jacobson's
supposed retraction of the quoted statement that they tardily
do now.
However, it appears that Jacobson had recanted the quoted
statement. Appellants state that at the Commission's final
meeting on December 18, 2001, Jacobson "rejected her
own statement." (Emphasis in original.) Upon review of the
record on appeal, it appears that Jacobson's December 18,
2001 testimony was never made part of the record
Appellants have since attached the subsequent Jacobson
testimony to their motion as Appendix 32, as well as a
declaration by their attorney, which certifies that the
attached minutes "are public documents that are found
on the County of Hawaii website at Hawaii-county.com."
Although the subsequent Jacobson testimony need not be
considered by this court, see Orso v. City & County of
Honolulu, 55 Haw. 37, 38, 514 P.2d 859, 860 (1973) ("[A]
question involving evidence not in the record cannot be
reviewed on appeal.") (citation omitted), in light of the fact
that Jacobson retracted her statement, a fact only now
raised by Appellants, this court grants Appellants' request
to strike any reference to the Jacobson testimony. In
doing so we observe that it is a fundamental and elementary
proposition that counsel is obligated to present an accurate
record on appeal.
III.
In their first point, Appellants argue that it is the
"Commission's constitutional obligation, not this [c]ourt's
burden, to offer evidence that justifies a plan that contains
deviations in excess of 10%, that favor pre-existing
[c] ounty [c] ouncil districts and that 'fractures' the judicial
district of Puna." (Emphasis in original.) Appellants
maintain that this court "overlook[ed] that officials in
Rileyjv. Baxter County Election Commission, 843 S.W.2d
831 (Ark. 1992),] actually testified to the court to explain
their reason for offering a plan that contained deviations in
excess of 10% [and that] [n] either the trial court nor the
appellate court in Riley searched through the record to
fathom the basis for official action."
To the contrary, this court did not "overlook" the fact that
the commission member in Riley "actually testified"
inasmuch as the opinion expressly states that "[a]t the
hearing before the trial court, a commission member
testified that 'the overriding principle' followed by the
commission in redistricting 'was equal representation."' Slip
op. at 21 (quoting Riley, 843 S.W.2d at 833) (emphasis
added). The rule extrapolated from Riley was that a
redistricting plan survives equal protection scrutiny where
its variation is "only slightly over the acceptable 10%
variation[,]" and "the commission's 'systematic approach. .
. reveal[s] a rational policy of redistricting."' Id. (quoting
Riley, 843 S.W.2d at 833) (emphasis added).
The opinion agrees with Appellants that "the Commission
did not address the deviation question because it was
working from the 'total' as opposed to 'resident' population
base, which presented only an 8.62% deviation." Id. at 22.
But, it was decided that similar to Riley, "the 10.89% total
deviation of the Commission's plan is 'only slightly over the
acceptable 10% variation[,]" id. at 21, and "akin to the
approach exemplified by the commission member's
testimony in Riley, the Commission in the instant case, by
using a 'total' population, evidenced an intent to achieve
inclusiveness and equal representation." Id. at 22 (emphasis
added).
Even without the Jacobson testimony, which is stricken,
Commissioner Mark Van Pernis's "motion to 'include all
people,"' which was "put to a vote and carried, evidenc[ed]
that the Commission was motivated by inclusiveness, as
opposed to a discriminatory purpose." Id. Moreover, the
opinion cites to three additional criteria for redistricting as
mandated by section 3-17(f) of the Charter of the County of
Hawaii (the Charter). See id. at 23. As the opinion notes,
"Appellants [did] not contend that the Commission failed to
consider [these] other redistricting criteria under the
Charter or that such criteria would not support a slightly
greater deviation than the 10% prima facie threshold." Id.
Additionally, County Appellees, in their memorandum in
opposition to the motion for reconsideration, now identify
parts of the record as evidence that the Commission was
guided by these other Charter-mandated criteria. First, the
reapportionment plan itself reflects the Commission's
consideration of the "permanent and easily recognizable
features" criterion, Charter § 3-17(f)(3), inasmuch as the
written descriptions of each of the designated council
districts refer to streams, shorelines, and other geographical
features.
Second, at their final meeting on December 18, 2001, the
commissioners made statements that evidence serious
consideration of all four criteria. One commissioner related
the Commission's task of balancing the equal representation
criterion with the other three criteria:
Since the Big Island population is not equally spread out
geographically throughout the Island, obviously the districts
cannot be geographically equal in size, in addition to being
numerically equal. That is why argument and controversy can
result. Some people or groups want a council district which
serves their interest in a particular geographical area or a plan
which serves their particular or geographical or political
interest. But these localized special interests don't give adequate
consideration to the rest of the Island.
The Commission needs to consider all of the Island and all of its
people in making the best plan. Such plans would spread around
more fairly the benefits and detriments of equal numbers but on
equal geographv.
(Emphasis added.) Another commissioner expressed the
Commission's motivation to adopt a plan ensuring that,
consistent with the provisions of Charter sections 3-17(f)(1)
and (2), "[n]o district shall be drawn to unduly favor or
penalize a person or political faction" and that districts
would be "contiguous and compact":
I have no doubt in my mind that we did the very best we could
with creating, you know, as compact and as contiguous districts
as possible....
So we did as a Charter mandate, we did the very best we could
wherever possible to create a [sic] compact and contiguous
districts as we could. We made concerted efforts to keep
communities and subdivisions together. Again, here and there,
there [sic] wasn't absolutely do-able because of the census tracts
and numbers and all the other issues. But I have no doubt in my
mind that we did our very, very best.
I have no doubt in my mind that no specific group was
penalized, and no specific group was favored, we did the very
best we could, all of the Island and all the communities.
(Emphases added.) Pursuant to Riley, these statements,
made by the Commission members themselves, justify the
slightly greater than 10% deviation.-(-61 Accordingly, this
court did not "overlook" or "misapprehend" the Riley
holding lIl
IV.
In their third point, Appellants argue that while the
Commission's reliance on the total population base "reflects
the underlying principle of the one man - one vote doctrine,
it does not describe a rational state policy" inasmuch as it
"allows an apportioning body to create legislative districts
under which pre-existing districts (and the incumbents
therein) are favored and [to] 'fracture' well-known
communities of interests because of administrative
convenience[.]" (Emphasis in original.)
Appellants' motion attempts to clarify what was obviously
ambiguous in their appellate briefs the possibly
problematic effect of the redistricting plan on "communities
of interest."- U9 According to the motion, the redistricting
plan allegedly "fractures" the "judicial" district of Puna:
[T]he judicial district of Puna with 31,307 countable people is
"fractured" by assigning portions of "upper" Puna along with
portions of the adjoining judicial district of South Hilo to
County Council District #3 and by assigning other portions of
"upper" Puna along with all of the adjoining judicial district of
Ka'u and portions of the non-adjoining, distantjudicial district
of South Kona to County Council District #6. As a result,
residents of Puna have one resident councilor and must "share"
two councilors with other adjoining districts who may or may
not be a resident of Puna. This is a classic example of vote
dilution of residents of one district in favor of residents of other
districts.
As a result, residents of the "upper" Puna, whose population
may justify a single councilor of its own, find their interests
submerged into the adjoining and distant judicial districts of
South Hilo, Ka'u, and South Kona. More significantly, Council
Districts #1, 2, 3, and 4 are denominated by "Hilo interests,"
with a statistically significant number of non-resident students
(who should have been excluded) in the judicial district of
South Hilo.
(Emphasis in original.)
While this explanation may have raised a concern,
Appellants withdrew these arguments in the January 6,
2003 stipulation to amend first amended complaint and for
entry of judgment. The stipulation stated:
Plaintiffs and Defendants herein stipulate to the amendment of
the First Amended Complaint filed here on March 6, 2002 as
follows:
1. Plaintiffs withdraw and delete Paragraphs 12.a to 12.f,
2. Plaintiffs withdraw and delete Paragraphs 12.j to 12.n.
The effect of the deletions is to withdraw Plaintiffs' allegations
that the County of Hawaii 2001 Reapportionment Commission
failed to use a "rational or obiective methodology" (IT 12.a to
12.f) and wrongfully submerged communities of interest into
larger districts (94 12.i to 12.0 but not Plaintiffs' allegations as
to the population base that the County of Hawaii 2001
Reapportionment Commission used (QT 12.g to 12.i and 12.o to
12. .
As a result, the Order for Summary Judgment entered herein on
the population base that the County of Hawaii 2001
Reapportionment Commission used disposes of all issues herein
leaving no other issues left for decision.
(Emphasis added.) Specifically, the stipulation withdrew,
inter alia, the following allegations:
No Rational or Obiective Methodoloev
12.e. When the public provided information and recommendations on
the assignment of communities of interest to specific Council Districts
that differed from the 1991 Council District boundaries and the
Commission's fixed geographical "starting points," the Commission
rejected the public's input and recommendations, continued to rely
upon the existing 1991 Council District boundaries and its arbitrar[il]y
fixed geographical "starting points" and justified its adoption of the
2001 Reapportionment Plan by using arbitrary and inconsistent criteria.
121 As a consequence, the Commission's 2001
Reapportionment Plan (1) keeps incumbents in Council
Districts based on the 1991 Council District boundaries, despite
changes in the population for the County of Hawaii since 1991,
(2) fractures existing communities of interest, and (3) dilutes the
representative power of some communities of interest while
inflating the representative power of other communities of
interest.
Submergence of Communities oflnterests into Lareer Districts Where
Different Socio-Economic Interests Predominate
12.j. For more than 100 years, governmental units in Hawaii
have used the traditional land districts of the Island of Hawaii,
now known as the judicial districts, to organize government
agencies and to administer government programs....
121. These traditional land districts, or judicial districts, are the
Districts of North Hilo, South Hilo, Puna, Ka'u, South Kona,
North Kona, South Kohala, North Kohala and Hamakua[.l
12.1. Furthermore, distinct communities of interest have
developed and exist within these traditional land districts, or
judicial districts.
12.m. Although the reapportionment principles in Articl IV,
Section 6 of the Hawaii State Constitution state that a
reapportioning body shall avoid "[w]here practicable,
submergence of an area in a larger district wherein substantially
different socio-economic interests predominate," the
Commission did not identify or consider the socio-economic
interests of communities that could be determined from public
sources available to the Commission on subjects such as
education, employment and poverty levels, or the effect of
including communities of differing socio-economic interest into
designated Council Districts.
12.n. As a consequence, even though reasonable and practicable
alternatives existed and even though the public had provided the
Commission with background information on the differing
socio-economic interest of communities, the Commission
rejected such alternatives and information and, using its
arbitrary geographical "starting points" and 1991 Council
District boundaries, submerged communities of interest in
certain areas into a larger district wherein substantially different
socio-economic interest predominate. This consequence is
reflected in the Commission's action that:
(1) divided communities in the upper (or northern)
portion of the Puna judicial district and assigned those
divided communities to two (2) separate Council
Districts where substantially different socio-economic
interest predominate[.]
(Some emphases added and some in original.) As observed
in the opinion, "[t]he effect of the parties' stipulation .
was 'to withdraw Appellants' allegations that the
Commission failed to use a'rational or objective
methodology' and wrongfully submerged communities
of interest into larger districts but not Appellants'
allegations as to the population base that the
Commission used." Slip op. at 5 n.3 (brackets omitted)
(emphasis added).
Appellants' withdrawal of the argument that the
redistricting plan submerges communities of interests into
larger districts where different socio-economic interests
predominate precludes a resurrection of that argument on
appeal, especially on a motion for reconsideration. See
Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85,
114, 839 P.2d 10, 27 (1992) ("The purpose of a motion for
reconsideration is to allow the parties to present new
evidence and/or arguments that could not have been
presented during the earlier adjudicated motion."); DAM
v. Hotel 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 matters.").
Hence the alleged "vote dilution" of Puna residents is not
properly before this court, having been withdrawn by
stipulation. This court, then, did not "overlook" the
"fracturing" of the judicial district of Puna because it was
not a part of the appeal.
As to Appellants' contention that "the only articulated
reason found in the County Reapportionment Commission's
records" was "administrative convenience," as discussed
sunra, it must be reiterated that (1) Commissioner Van
Pernis's "motion to 'include all people,"' which was "put to
a vote and carried, evidenc[ed] that the Commission was
motivated by inclusiveness as opposed to a discriminatory
purpose[,]" slip op. at 22, and (2) the opinion cites to three
additional criteria for redistricting mandated by section 3-
17(f) of the Charter required to be considered by the
Commission. See id. at 23. Moreover, the "administrative
convenience" argument was not presented as a discernible
legal argument in Appellants' briefs and, hence, need
not have been addressed. Norton v. Admin. Dir. of the
Court, 80 Hawaii 197, 200, 908 P.2d 545, 548 (1995)
(disregarding a particular contention for lack of a
"discernible argument in support of that position, in
violation of Rule 28(b)(7) of the Hawaii Rules of
Appellate Procedure").
V.
In their fourth point, Appellants disagree with this court's
statement that "Appellants do not argue, nor point to
evidence in the record, that the Commission did not'make
an honest and good faith effort to construct districts of
equal population as is practicable[.]"' Slip op. at 24 (citation
omitted). Appellants assert in the motion that the lack of
good faith and honesty argument was "subsumed" in their
assignment of error and incorrectly assert that they "argued
in their Opening Briefj 1 ] [that the Commission] made
no effort, even when informed of the risks that it was taking
by using the wrong population base, [sic] the Commission
proceeded anyway - because of administrative
convenience, because it was too difficult and time-
consuming to do otherwise."
The fact remains, however, that Appellants did not
expressly make a "lack of good faith and honesty"
argument. Moreover, even if this court were to accept
Appellants' contention that such an argument was
"subsumed" in its assignment of error, it would not alter
this court's conclusion that "[w]hat remains is Appellants'
conclusory statement that the 'Commission's records do not
reflect any evidence that justifies the [C]ommission's action
to adopt a [r]edistricting [p]lan that has deviations that
exceed the ideal mean by more than 10%."' Slip op. at 24.
Indeed, as County Appellees observe, the Commission's
inclusion of the deviation charts in the reapportionment
plan is "indicative of the good faith effort of the
Commission to achieve equal representation by keeping the
deviations at no more than five percent."(12~ Hence, this
point is without merit.
VI.
In their fifth argument, Appellants maintain that
"[a]lthough this Court states that [Appellants] did not assert
that the County Reapportionment Commission's plan is
invalid, if the plan is constitutionally defective, the plan
cannot be valid." But the opinion, in addition to pointing
out that Appellants did not 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 void for being based on the wrong population, .
the language of Charter section 3-17(f)(4) would bring us
back to the constitutional question." Slip op. at 15.
Accordingly, the opinion proceeds to address the question
of whether, "when nonresident military personnel, their
dependents, and university students are excluded from the
population base, 'deviations emerge in the [r]edestricting
[p]lan that exceed constitutional limits."' Id. Thus, the
opinion is in agreement with Appellants' contention that if
the plan was constitutionally defective, it would be invalid.
A majority of this court did "not believe that that [was] the
case, however." Id. Such matters, then, were not
"overlooked" or "misapprehended."
VII.
Finally, Appellants argue that "[i]n the usual case, this
Court would remand the case to the trial court for further
proceedings[,]" but because "the trial judge is no longer
sitting and the County Reapportionment Commission has
been dissolved[,] this Court should simply reverse the
trial court's judgment below[, and u]pon such reversal, the
parties may then apply to this Court for further relief as the
circumstances may warrant." In light of the disposition
herein, these matters need not be addressed, and in any
event, appear irrelevant to the decision.
VIII.
Therefore, based on the foregoing,
IT IS HEREBY ORDERED that the motion for
reconsideration is granted as to the request to strike the
reference to the Jacobson testimony, and, therefore, the
paragraph beginning on line 12 from the top of page 22 of
the opinion shall be amended by striking the words after
"Commission" on line 12 through line 20 and striking the
word "then" on line 21, leaving the sentence beginning on
line 12 to read:
For at the second meeting of the Commission, Commissioner Mark
Van Perris made a motion to "include all people": "[A]ll the people
that the census counted is included because, whether they vote or not,
or whether they're young or old, military or not, they all use county
services, they all pay taxes in some form or shape and they all need
representations."
The Clerk of the Court is directed to incorporate the
foregoing changes in the original opinion and take all
necessary steps to notify the publishing agencies of these
changes.
IT IS FURTHER ORDERED that the motion is denied in
all other respects.
Michael J. Matsukawa, on
the motion for
plaintiffs-appellants.
Patricia K. O'Toole,
Deputy Corporation Counsel,
County of Hawaii, for
defendants-appellees.
1. Hawai' i Rules of Appellate Procedure Rule 40(b) (2005) provides
that a motion for reconsideration "shall state with particularity the
points of law or fact that the moving party contends the court has
overlooked or misapprehended, together with a brief argument on the
points raised."
2. Appellants attach Jacobson's June 22, 2001 testimony to their
motion as Appendix 31, but the testimony is already part of the record.
3. County Appellees attached excerpts from the December 18, 2001
transcripts to their memorandum in opposition to Appellants' motion
for change of venue, but Jacobson's testimony on pages 9-13 was not
included.
4. In their response to the motion, County Appellees maintain that
Jacobson's testimony "was given at an earlier meeting of the
Commission before any particular plan was before it. She later spoke in
support of a particular plan but did not specifically address the
population issue. What she was clearly recanting was the plan she
herself submitted to the Commission to consider." To remove any
doubt regarding this matter, however, we believe the better course is to
excise such testimony.
5. The argument that the redistricting plan "fractures" the judicial
district of Puna is addressed infra, Part IV.
6. Hence, as County Appellees maintain, "it would be a futile
exercise to remand to ask commissioners for a reason which they have
already expressed in the vote on the motion at the June 22, 2001
meeting."
7. Inasmuch as the reapportionment plan and the commissioners'
testimony are part of the record, this court may rely on these grounds to
affirm the court's judgment. See Delos Reyes v. Kubovama, 76 Hawaii
137, 140, 870 P.2d 1281, 1284 (1994) ("This court may affirm a grant
of summary judgment on any ground appearing in the record, even if
the circuit court did not rely on it.").
8. Appellants argue as follows:
In offering its justification for the County
Reapportionment Commission's plan (in substitution of
the Commission's omission), this Court states that the
Commission's purpose must have been to use a total
population base that would give every man, woman,
child, incarcerated felon, soldier, dependent of a soldier,
resident alien and others "representation."
While this statement reflects the underlying principle of
the one man - one vote doctrine, it does not describe a
rational state policy. Nor does it explain how that state
policy is in fact legitimately advanced by a plan that is
prima facie unconstitutional because it violates that one
man - one vote doctrine of keeping populations as equal
as possible to avoid the danger of diluting votes.
The extension of this statement is that the one man - one
vote principle allows an apportioning body to create
legislative districts under which pre-existing districts
(and the incumbents therein) are favored and that
"fracture" well-known communities of interests because
of administrative convenience, the only articulated
reason found in the County Reapportionment
Commission's records. No court has ever subscribed to
such a conclusion.
(Emphases in original.) It should be noted that the opinion did not
reference "every man, woman, child, incarcerated felon, soldier,
dependent of a soldier, resident alien and others," as Appellants imply
in the quote above. The opinion did not employ such a list. Indeed,
Appellants stated as a point of error that "the 2001 County
Reapportionment Commission should have used a population base that
excluded nonresident military personnel and their dependents and
nonresident students," (emphases added), groups which the opinion did
discuss.
9. Appellants contend that "Table Two, reproduced in Opening Brief,
Appendix 25, shows how thejudicial district of Puna with 31,307
countable people is 'fractured,"' (Emphasis in original.) But Table Two,
without explanation, does not convey the specific contention that Puna
was "fractured." In fact, Appellants did not utilize Table Two for this
proposition. Appellants referenced Table Two on three occasions in
their opening brief. The first and second references, stating that "[t]he
consequence of not excluding these persons from the population base is
set forth in Table One and Table Two," and that "[t]he statistical
significance of the 810 nonresidents who are located in the District of
South Hilo is shown in Table Two," were cryptic at best. In the third
reference, Appellants utilized Table Two to "show[] the number of
persons who fall below or above the ideal mean for each council
district," not to point out that Puna was being "fractured."
10. At the end of their reply brief, Appellants stated that
"[c]onvenience, not substantive law, dictated the outcome of the final
Redistricting Plan." This statement did not establish that the
Commission was guided by administrative convenience in creating
legislative districts. Again, Appellants did not assert that the
Commission failed to consider the other valid criteria as mandated
under the Charter. As the opinion observes, "related objections were
apparently waived when Appellants stipulated to withdraw the claims
that the Commission failed to use a'rational or objective methodology'
and 'wrongfully submerged communities of interest into larger
districts,' thereby abandoning any claim that the Commission
incorrectly applied the other three criteria in Charter section 3-17(t)."
Slip op. at 23-24.
11. The term "convenience" first appeared in the reply brief, not the
opening brief as Appellants state, and it does not appear Appellants
used the term "administrative convenience." See supra note 10.
12. Using the total population base, the deviation percentage of each
district does not exceed 5% and, therefore, does not exceed the 10%
threshold.
***FOR PUBLICATION***
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
---000---
CITIZENS FOR EQUITABLE AND RESPONSIBLE GOVERNMENT,
a Hawaii nonprofit corporation; BRENDA J. FORD;
STANLEY A. BOREN; FLOYD H. LUNDQUIST; MARLENE E. LUNDQUIST;
RONALD C. PHILLIPS, Plaintiffs-Appellants
and
BEVERLY BYOUK and SANDRA W. SCARR, Plaintiffs-Appellees
vs.
COUNTY OF HAWAII; COUNTY CLERK, COUNTY OF HAWAII; LLOYD
VAN DE CAR, CHAIRMAN, COUNTY OF HAWAII 2001
REAPPORTIONMENT COMMISSION, Defendants-Appellees
NO. 25614
APPEAL FROM THE THIRD CIRCUIT COURT
(CIV. NO. 01-1-0092)
JULY 22, 2005
LEVINSON, ACOBA, AND DUFFY, JJ.;
WITH NAKAYAMA, J., CONCURRING SEPARATELY AND
DISSENTING, WITH WHOM MOON, C.J., JOINS
OPINION OF THE COURT BY ACOBA J.
We hold that (1) the phrase "equal resident populations" in section 3-17(f)(4) of the Charter of
the County of Hawaii (the Charter) excludes nonresident college students and nonresident
military personnel and their dependents from the population base for purposes of reapportioning
county council districts of the County of Hawai' i, (2) a total deviation in excess of 10% in an
electoral reapportionment plan presents a prima facie case of discrimination in violation of the
equal protection clause of the United States Constitution, (3) a rational government policy will
justify a total deviation that slightly exceeds the 10% threshold, and (4) assuming, in excluding
nonresident students and nonresident military personnel and their dependents from the
population base, the plan of the County of Hawaii 2001 Reapportionment Commission (the
Commission) resulted in a total deviation of 10.89%, such a deviation in this unique instance
(a) was minimal, (b) apparently included the Commission's consideration of other valid criteria
under section 3-17 of the Charter, (c) resulted from the commission's intent to achieve
inclusiveness and equal representation, and (d) was, therefore, constitutional.
1.
Pursuant to the Charter, Defendant-Appellee County of Hawaii initiated a reapportionment of its
county council districts in 2001. The Commission was appointed and confirmed in accordance
with a provision in the Charter requiring that in 1991, and every tenth year thereafter, a
commission be established to determine the boundaries of council districts, and to file a
reapportionment plan by December 31 of those years.- 10 A series of public meetings and hearings
was held throughout Hawaii County, during which private speakers argued that the Commission
was using the wrong population base and should exclude therefrom nonresident college students
and nonresident military personnel and their dependents. The Commission adopted a
reapportionment plan (the Commission's plan) and filed it as required with the County Clerk. The
Commission's plan provided for a total resident population base that included nonresident
college students and nonresident military personnel and their dependents.
Subsequent to the filing of the Commission's plan, Plaintiffs-Appellants Citizens for Equitable
and Responsible Government, Brenda J. Ford, Stanley A. Boren, Floyd H. Lundquist, Marlene E.
Lundquist, Ronald C. Phillips, (collectively, Appellants) and Plaintiffs-Appellees Beverly Byouk
and Sandra W. Scarr filed a Complaint and First Amended Complaint against County of Hawaii
and other Defendants-Appellees, the County Clerk, Hawai'i County and Llyod Van De Car,
Chairman of the Commission (collectively, County Appellees) in the third circuit court (the
court) requesting, inter alia, a declaratory ruling that the Commission's plan was invalid.
Appellants moved for partial summary judgment on the ground the Commission used the wrong
population base and that, therefore, the Commission's plan was unconstitutional because its total
deviation from the ideal mean exceeded 10%. Appellants appended to their motion for summary
judgment a letter dated October 25, 1989, written by Christopher J. Yuen (Yuen), the attorney
representing the Commission during the drafting of the reapportionment plan, for the proposition
that the Commission was advised to use the same population base as used by the State
Reapportionment Commission. On June 20, 2002, County Appellees filed an affidavit by Yuen
to rebut Appellants' proposition. Appellants moved to strike the affidavit.
Following a hearing, the court denied Appellants' motion and sua ssponte granted partial summary
judgment in favor of County Appellees. The court did not issue findings of fact or conclusions of
law, but in its July 19, 2002 order stated, inter alia as follows:
The [c]ourt finds that the adoption by the Commission of a resident population base which did not
exclude non-resident military personnel and their dependents and did not exclude non-resident university
students in the 2001 council redistricting plan was proper.
The [c]ourt also finds that there was no unconstitutional deviation in the population count in the county
council districts as set forth in the 2001 council redistricting plan adopted by the Commission.
Following the court's ruling, the parties agreed to withdraw all remaining counts so that final
judgment could be entered in the case i31 The court entered final judgment in favor of County
Appellees and against Appellants on January 24, 2003. Appellants filed their notice of appeal on
January 31, 2003.
II.
On appeal, Appellants maintain that the court erred in (1) refusing to strike the affidavit of the
Commission's counsel, (2) concluding that the Commission could include nonresident university
students and nonresident military personnel and their dependents in the population base, (3)
deciding that the total deviation between county council districts in the redistricting plan did not
exceed constitutional limits, and (4) ruling that the redistricting plan is valid. They request an
order (1) invalidating the Commission's plan, (2) appointing a master to prepare a new
redistricting plan using the correct population base, and (3) granting such other appropriate
relief.
III.
"Unlike other appellate matters, in reviewing summary judgment decisions[,] an appellate court
steps into the shoes of the trial court and applies the same legal standard as the trial court
applied. Beamer v. Nishiki, 66 Haw. 572, 577, 670 P.2d 1264, 1270 (1983). "Summary judgment
is appropriate if the pleadings, depositions, and answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue of material fact and
the moving party is entitled to a judgment as a matter of law." Pao. Intl Serv. Corp. v. Hurip, 76
Hawaii 209, 213, 873 P.2d 88, 92 (1994). A trial court's conclusions of law are reviewed de
novo under the right/wrong standard. Fuiimoto v. Au, 95 Hawaii 116, 137, 19 P.3d 669, 720
(2001). Under this standard, the trial court's conclusions of law are not binding upon the
appellate court and are freely reviewable for its correctness. Id.
IV.
As to point (1), the court did not rule on Appellants' request to strike an affidavit of the
Commission's attorney. Appellants assert that the affidavit of the Commission's attorney is not
part of the Commission's records and contains the opinion and recollection of the attorney ten
years after-the-fact. County Appellees maintain that they offered the affidavit of the
Commission's attorney to clarify that the letter in Appellants' motion stated only that there was a
difference in reapportionment between using residents, as opposed to registered voters, in
determining the population base and that the affidavit was not introduced to reflect the intent of
the charter commission. Inasmuch as the affidavit was not offered with respect to the intent of
the charter commission and is not necessary to our interpretation of the phrase "resident
populations," see infra, we do not address Appellants' point (1).
V.
The primary issue on appeal, Appellants' point (2), is whether nonresident college students and
nonresident military personnel and their dependents should be excluded from the population base
of Hawai' i County's reapportionment of city council districts. The Charter mandates that
"[d]istricts shall have approximately equal resident populations as required by applicable
constitutional provisions[,]" Charter § 3-17(f)(4) (emphasis added), see supra note 1, but fails to
define the phrase "resident populations."
Appellants first argue that "resident populations" should be interpreted in the same manner as
that term is applied in the apportionment of state representative districts, that is, by using a
permanent resident population base. Appellants refer to an amendment made to Article IV of the
Constitution of the State of Hawaii in 1992, when voters statewide voted to use a "permanent
resident" population base for apportioning legislative districts. The amendment mandated that
only residents having their domiciliary in the State of Hawaii may be counted in the population
base for the purpose of reapportioning legislative districts. Article IV of the Constitution of the
State of Hawaii states in relevant part as follows:
The commission shall allocate the total number of members of each house of the state legislature being
reapportioned among the four basic island units namely: (1) the island of Hawaii, (2) the islands of Maui,
Lanai, Molokai and Kahoolawe, (2) the island of Oahu and all other islands not specifically enumerated, and
(4) the islands of Kauai and Niihau, using the total number of permanent residents in each of the basic island
units and computed by the method known as the method of equal proportions; except that no basic island
unit shall receive less than one member in each house.
Haw. Const. art. IV, § 4 (amended 1992) (emphasis added). However, the amendment to Article
IV only applies to state legislative redistricting, not county council redistricting.
The Commission interpreted the Charter phrase "resident populations" to encompass all persons
who "reside within the county" as reflected in the federal census and, accordingly, did not
exclude nonresident university students and nonresident military personnel and their dependents
in the population base for the reapportionment plans. County Appellees argue that the
Commission's interpretation of the phrase was a discretionary act, and, thus, under Kawamoto v.
Okata, 75 Haw. 463, 868 P.2d 1183 (1994), the actions of the Commission should be accepted
unless an abuse of discretion is shown.
"The interpretation of the charter is similar to the interpretation of a statute." Maui County
Council v. Thompson, 84 Hawaii 105, 106, 929 P.2d 1355, 1356 (1996). When interpreting a
statute,
our foremost obligation is to ascertain and give effect to the intention of the legislature[,] which is to be
obtained primarily from the language contained in the statute itself. And where the language of the statute is
main and unambiguous, our only duty is to give effect to its plain and obvious meaning.
Id. (quoting State v. Baron, 80 Hawaii 107, 113, 905 P.2d 613, 619 (1995) (emphasis added). In
this regard, a common definition of "resident" is
[a]ny person who occupies a dwelling within the State, has a present intent to remain within the State for a
period of time, and manifests the genuineness of that intent by establishing an ongoing physical presence
within the State together with indicia that his presence within the State is something other than merely
transitory in nature.
Black's Law Dictionary 1309 (6th ed. 1990) (emphases added). See In re Irving, 13 Haw. 22, 24
(1900) ("[T]he primary significance of the word 'residence' as used in the constitution is the same
as domicil[e] a word which means the place where a man establishes his abode, makes the seat
of his property, and exercises his civil and political rights." (Quoting Chase v. Miller, 41 Pa. 403,
420 (Pa. 1862))). This definition of "resident" would exclude any person who did not exhibit a
present intent to remain within Hawaii County for more than a transitory period.
Generally, college students from outside Hawaii County who lack a present intent to remain in
the county for a period of time beyond their date of graduation would not be considered
residents. Their presence in Hawaii County is primarily for educational purposes, which is
"transitory in nature." Likewise, ordinarily the transitory nature of military personnel from
outside Hawaii County is apparent. Normally, military personnel and their dependents are
temporarily stationed in the county by the United States military. Military personnel may have
little say in deciding the location of their assignment. As a result, generally speaking, members
of the military are in Hawaii County involuntarily, as opposed to persons who choose to live in
the county. See Carpenter v. Hammond, 667 P.2d 1204, 1211 (Alaska 1983) (recognizing the
"involuntary nature of the military member's assignment to [a] state").
The Charter employs the phrase "resident populations" which indicates that the drafters of the
Charter intended to limit the population base to residents of Hawaii County. Those who live in
the county temporarily for educational purposes or those who live in the county involuntarily
because ordered to do so would seemingly lack a present intent to remain in the county,
rendering their stay "transitory in nature." Logically, the drafters of the Charter would not have
modified the word "population" by the adjective "resident" or, on the other hand, would have
employed the phrase "total population" had they intended to include nonresident college students
and nonresident military personnel and their dependents in the population base.
Accordingly, we hold that the phrase "resident populations" found in the Charter excludes
nonresident university students and nonresident military personnel and their dependents from the
population base of the county council reapportionment plan. The court, therefore, was wrong to
conclude that the Commission's inclusion of these nonresidents was proper. - U6
VI.
While we must interpret the term "resident populations," we note that no dispute is raised by the
parties as to whether the persons designated as residents or nonresidents were properly
denominated as such. Appellants note that "in 2001, State officials had access to an improved
database and software program and had the ability to collect data that enabled state officials to
identify and locate nonresident students, nonresident military personnel and nonresident military
dependents with reasonable accuracy." (Emphases omitted.) Thus, argue Appellants, "[ilt was
also possible to identify these same individuals for the purpose of establishing county council
seats for the County of Hawaii County Council."
County Appellees do not deny the availability of such technology nor challenge its feasibility. In
fact, they apparently relied on the State's database and computer program to support their motion
for partial summary judgment. In an affidavit attached as "Exhibit D" to County Appellees'
motion for partial summary judgment, David J. Rosenbrock, data processing coordinator for the
State of Hawaii Office of Elections, stated that "his office provided population data to the
County of Hawaii Reapportionment Commission," derived from "the federal census, the United
States Military and from the University of Hawaii at Hilo." Attached as "Exhibit V to the
affidavit were three charts showing (1) total population with no extractions, (2) total population
with nonresident students and nonresident military personnel extracted, and (3) total population
with nonresident students, nonresident military personnel and their dependents extracted. The
third chart expressed a deviation of 10.893%. The difference in population bases between the
first chart, showing a total population of 148,677, and the third chart, showing a total population
minus nonresidents of 147,806, confirms Appellants' calculation in their opening brief that using
information from the Commission's computer database, 871 "nonresidents should have been
excluded from the population base." County Appellees do not raise any objection to this.
VII.
We observe further that the exclusion of identifiable nonresidents from the population base is
consistent with the rules for determining "residency" for election purposes under Hawaii's state
election law, Hawaii Revised Statutes (HRS) chapter 11. HRS chapter 11 governs "all elections,
primary, special primary, general, special general, special, or county." HRS § 11-3 (1993)
(emphasis added). Pursuant to HRS § 11-11 (1993), the "county clerk shall be responsible for
voter registration in the respective counties and the keeping of the general register and precinct
lists within the county." HRS § 11-13 (1993) provides seven rules for determining a person's
"residency" for voter registration purposes. The statute references students as well as military
personnel as follows:
(5) A person does not gain or lose a residence solely by reason of the person's presence or absence while
employed in the service of the United States or of this State or while a student of an institution of learning,
or while kept in an institution or asylum, or while confined in a prison;
(6) No member of the armed forces of the United States, the member's spouse or the member's dependent is a
resident of this State solely by reason of being stationed in this StateH
HRS § 11-13. The Commission, by relying on "the census-counted population," included persons
in the population base "solely by reason of the person's presence" in Hawaii County "while
employed in the service" or "while a student of an institution of learning[.]" This counting of
students and military personnel and their dependents based on mere presence alone conflicted
with the statutorily mandated process for determining who may register to vote among the
counties. The plain reading of "resident populations" avoids the anomalous result of counting
nonresidents in the reapportionment plan when those nonresidents, pursuant to HRS § 11-13,
cannot register to vote.
V ill.
A.
In line with our holding, the Commission should have excluded the said nonresidents from the
redistricting population base. However, Appellants do not argue that the use of the wrong
population base alone invalidates the Commission's plan, but, rather, that the use of the wrong
population base created an unconstitutional deviation. Even if Appellants had argued that the
plan was void for being based on the wrong population, we observe that the language of Charter
section 3-17(f)(4) would bring us back to the constitutional question. Section 3-17(f)(4) states
that "[d]istricts shall have approximately equal resident populations as required by applicable
constitutional provisions." (Emphases added.) Thus, assuming Appellants' calculations, infra, are
correct, we address Appellants' argument in points (3) and (4) that when nonresident military
personnel, their dependents, and university students are excluded from the population base,
"deviations emerge in the [r]edistricting [p]lan that exceed constitutional limits." We do not
believe that that is the case, however.
B.
The United States Supreme Court has held that the equal protection clause of the United States
Constitution requires that electoral representation "be apportioned on a population basis."
Reynolds v. Sims, 377 U.S. 533, 568 (1964).in This requirement means "that a [s]tate [must]
make an honest and good faith effort to construct districts as nearly of equal population as is
practicable." Kawamoto, 75 Haw. at 470, 868 P.2d at 1187 (quoting Reynolds, 377 U.S. at 577
(emphases added)). The Court recognized, however, that "[m]athematical exactness or precision
is hardly a workable constitutional requirement." Reynolds, 377 U.S. at 533. See Kawamoto, 75
Haw. at 474, 868 P.2d at 1189. Accordingly, it adopted a flexible, "case-by-case" approach to
assessing redistricting plans, providing "general considerations" as follows:
A [s]tate may legitimately desire to maintain the integrity of various political subdivisions, insofar as
possible and provide for compact districts of contiguous territory in designating a legislative apportionment
scheme. Valid considerations may underlie such aims. Indiscriminate districting, without any regard for
political subdivision or natural or historical boundary lines, may be little more than an open invitation to
partisan gerrymandering. Single-member districts may be the rule in one [s]tate, while another [s]tate might
desire to achieve some flexibility by creating multimember or floterial districts. Whatever the means of
accomplishment, the overriding objective must be substantial equality of population among the various
districts so that the vote of any citizen is approximately equal in weight to that of any other citizen in the
s tate.
So long as the divergences from a strict population standard are based on legitimate considerations incident
to the effectuation of a rational state policy, some deviations from the equal-population principle are
constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a
bicameral state legislature.
Reynolds, 377 U.S. at 578-79 (emphases added). See Swann v. Adams, 385 U.S. 440, 443-44
(1967) (reversing a decision upholding a reapportionment plan where the state failed to present,
and the district court failed to articulate, "acceptable reasons for the variations" of 30% among
senate districts and 40% among house districts).
The "general principle of population equality applies to state and local elections[.]" Abate v.
Mundt, 403 U.S. 182, 185 (1971). The Supreme Court has intimated that "slightly greater
percentage deviations may be tolerable for local government apportionment schemes" and that
"particular circumstances and needs of a local community as a whole may sometimes justify
departures from strict equality." Id. See id. at 186-88 (upholding a county reapportionment plan
with a total deviation of 11.9% and districts that exactly correspond to the county's five towns
"based on the long tradition of overlapping functions and dual personnel" in the county
government and "on the fact that the plan [did] not contain a built-in bias tending to favor
particular political interests or geographic areas").
In view of these considerations, minor deviations from mathematical equality among state legislative
districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth
Amendment so as to require justification by the State. [Supreme Court] decisions have established, as a
general matter, that an apportionment plan with a maximum population deviation under 10% falls within this
category of minor deviations. A plan with lar eg r disparities in population, however, creates a prima facie
case of discrimination and therefore must be iustified by the [sltate.
Brown v. Thomson, 462 U.S. 835, 842-43 (1983) (internal quotation marks and citations
omitted). See Kawamoto, 75 Haw. at 474, 868 P.2d at 1189.
At issue in Brown was a Wyoming reapportionment plan that allocated one of sixty-four seats in
the state's house of representatives to a county with a deviation of 60% below the mean. Id. at
837, 843. Nevertheless, the Supreme Court upheld the plan on the following bases: (1) it was
"undisputed" that Wyoming's policy of ensuring that each county had one representative was
"free from any taint of arbitrariness or discrimination"; (2) "population equality [was] the sole
other criterion used"; and (3) "there [was] no built-in bias tending to favor particular political
interests or geographic areas." Id, at 843-44. The Brown majority approved of the Wyoming plan
as "an unusually strong example of an apportionment plan the population variations of which
[were] entirely the result of the consistent and nondiscriminatory application of a legitimate state
policy." la) Id. at 844. Thus, the "ultimate inquiry" is to determine "whether the legislature's plan
may reasonably be said to advance a rational state policy and, if so, whether the population
disparities among the districts that have resulted from the pursuit of this plan exceed
constitutional limits." Id. at 843 (internal quotation marks, brackets, and citation omitted)
(emphasis added).
IX.
A.
The Commission's plan divides Hawaii County into nine districts. Using the "resident
population" base (excluding nonresident military personnel, their dependents, and university
students) of 147,806, propounded by Appellants, the ideal mean is 16,423 (147,806 divided by
nine). According to Appellants' briefs and the record, the difference between the ideal mean and
the actual "resident population" of each district represents that district's "deviation," which is
translated into a deviation percentage. The difference between the district with the resident
population that exceeded the ideal mean by the greatest percentage and the district with the
resident population that fell below the ideal mean by the greatest percentage constitutes the
redistricting plan's "total deviation." According to Appellants' calculations, the resident
population of District 2 was 6.20% below the ideal mean (the latter category) and the resident
population of District 8 was 4.69% above the ideal mean (the former category), thereby resulting
in a total deviation of 10.89%.-L91 County Appellees do not concede that there is such a deviation,
maintaining that "[a]ny deviation is the result of the artificial construct of the Appellants in
determining that the numbers they believe should have been used are the only correct numbers,
when it was clearly within the discretion of the [C]ommission to use the numbers which it did
use."0 0)
However, as stated supra, to support their motion for partial summary judgment, County
Appellees submitted the Rosenbrock affidavit, which arrives at the same 10.89% figure as the
total deviation when nonresident students and nonresident military and their dependents are
excluded from the total population.
B.
Using Appellants' deviation figure for our analysis, a total deviation of 10.89% exceeds the
Supreme Court's threshold and, therefore, creates a prima facie case of discrimination in
violation of the equal protection clause. The Supreme Court of Arkansas has addressed a county
plan with a total deviation similar to the deviation of the Commission's plan here. In Riley v.
Baxter County Election, 843 S.W.2d 831, 832-33 (Ark. 1992), all parties stipulated that the
Baxter County redistricting plan varied among the districts by 10.149%. In assessing whether a
"rational policy to justify a variance over 10%" existed, id. at 833, the Arkansas Supreme Court
acknowledged the "systematic approach" taken by the election commission. The commission had
divided "the total population" of Baxter County by eleven, the number of districts to be
apportioned.
"The districts with population already closest to that number were kept the same, and the others
were slightly modified, taking geography into account, to reach parity." Id. At the hearing before
the trial court, a commission member testified that "the overriding principle" followed by the
commission in redistricting "was equal representation." Id. The Arkansas Supreme Court
concluded that the commission's "systematic approach reveal[ed] a rational policy of
redistricting in Baxter County" and that "the 10.149% variance [was] only slightly over the
acceptable 10% variation." Id. Thus, it was held that the trial court did not err in finding that the
commission overcame the prima facie case of discrimination. Id.
Similarly here, the 10.89% total deviation of the Commission's plan is "only slightly over the
acceptable 10% variation." Id. It is true, as Appellants posit, that the Commission did not address
the deviation question because it was working from the "total" as opposed to "resident"
population base, which presented only an 8.62% deviation. However, we cannot say that no
rational basis underlay the 10.89% deviation because, akin to the approach exemplified by the
commission member's testimony in Riley, the Commission in the instant case, by using "total"
population, evidenced an intent to achieve inclusiveness and equal representation. Cf. Calderon
v. Los Angeles, 481 P.2d 489, 493 (Cal. 1971) ("Adherence to a population standard, rather than
one based on registered voters, is more likely to guarantee that those who cannot or do not cast a
ballot may still have some voice in government." (Emphasis added.)).
For at the second meeting of the Commission, Hawaii County Councilmember Julie Jacobson
testified in favor of "using the population as the basis for the districting," stating that,
each human being has needs for the government serves [sic] and it doesn't matter if you're one day old, if
you're 99 years old, if you vote or don't vote, or any other of those variables each person needs to be
considered and I think especially with the complexity of infrastructure issues, that we deal with, that's why
it's important.
Commissioner Mark Van Pernis then made a motion to "include all people": "[A]ll the people
that the census counted is included because, whether they vote or not, or whether they're young
or old, or military or not, they all use county services, they all pay taxes in some form or shape
and they all need representations." The motion was put to a vote and carried, evidencing that the
Commission was motivated by inclusiveness as opposed to a discriminatory purpose.
Importantly, the Charter required the Commission to consider three additional factors in
redistricting. In addition to the "approximately equal resident populations" requirement at issue
here, Charter section 3-17(f) required the Commission to consider the following criteria:
(1) No district shall be drawn to unduly favor or penalize a person or political faction;
(2) Insofar as possible, districts should be contiguous and compact;
(3) District lines shall, where possible, follow permanent and easily recognizable features;
These considerations governed the Commission's determination. The statements supra at the
second meeting of the Commission evidenced the Commission's commitment against favoring or
penalizing a person or political faction in consonance with Charter Section 3-17(f)(1).
Ultimately, the deviation stemming from a "pure population" standard resulted from the
Commission's commitment to an inclusive model rather a discriminatory one. Appellants do not
contend that the Commission failed to consider other redistricting criteria under the Charter or
that such criteria would not support a slightly greater deviation than the 10% prima facie
threshold. It should be noted that related objections were apparently waived when Appellants
stipulated to withdraw the claims that the Commission failed to use a "rational or objective
methodology" and "wrongfully submerged communities of interest into larger districts," see
supra note 3, thereby abandoning any claim that the Commission incorrectly applied the other
three criteria in Charter section 3-17(f).
Finally, we observe that Appellants do not argue, nor point to evidence in the record, that the
Commission did not "make an honest and good faith effort to construct districts of equal
population as is practicable[,]" Reynolds, 377 U.S. at 577, that the plan has "'a built-in bias
tending to favor particular political interests or geographic areas[,]"' Brown, 462 U.S. at 844
(quoting Abate, 403 U.S. at 187), or that the Commission's redistricting process was "taint[ed]"
with "arbitrariness," id. at 843. What remains is Appellants' conclusory statement that the
"Commission's records do not reflect any evidence that justifies the [C]ommission's action to
adopt a [r]edistricting [p] Ian that has deviations that exceed the ideal mean by more than 10%.
Therefore, on the foregoing bases and under the specific circumstances of this case, we hold
that, ultimately, the court did not err in concluding that "there was no unconstitutional
deviation in the population count in the county council districts as set forth in the 2001
council redistricting plan adopted by the Commission."
X.
Based on the foregoing, the Commission's erroneous inclusion of nonresident students and
military personnel and their dependents in the population base for reapportionment of
Hawaii County council districts did not ultimately result in an unconstitutional deviation
under its reapportionment plan. Although we do not agree with the court that the
Commission's population base was correct, we affirm the court's decision upholding the
Commission's plan because the plan complies with the mandate of Charter section 3-
17(f)(4) that the districts be comprised of "approximately equal resident populations as
required by applicable constitutional provisions. (Emphases added.) See Hawaii Provider's
Network Inc. v. AIG Hawaii Ins. Co., 105 Hawaii 362,368 n.14, 98 P.3d 233, 239 n.14 (2004)
("[W]here the decision below is correct it must be affirmed by the appellate court though the
lower tribunal gave the wrong reason for its action." (Quoting Agsalud v. Lee, 66 Haw. 425, 430,
664 P.2d 734, 738 (1983).)); Poe v. Hawaii Labor Relations Bd., 87 Hawaii 191, 197, 953 P.2d
569, 575 (1998) ("Where the circuit court's decision is correct, its conclusion will not be
disturbed on the ground that it gave the wrong reason for its ruling." (Quotation marks and
citation omitted.)). Accordingly, the court's January 24, 2003 final judgment is affirmed.
On the briefs:
Michael J. Matsukawa for
for plaintiffs-appellants.
Patricia K. O'Toole,
Deputy Corporation Counsel,
County of Hawaii, for
defendants-appellees.
1. Section 3-17 of the Charter under which the Commission acted states as follows:
(a) There shall be a county reapportionment commission which shall establish the boundaries of the council
districts.(b) The initial reapportionment commission shall consist of seven members, two of whom shall be residents
of the combined judicial districts of North and South Hilo, one from the judicial district of Puna, one from the
judicial district of Kau, one from the combined judicial districts of North and South Kona, one from the combined
judicial districts of North and South Kohala, and one from the judicial district of Hamakua. The members shall be
appointed by the mayor and confirmed by the council in the manner prescribed in section 13-4.
(c) Each subsequent reapportionment commission shall consist of nine members. One member shall
be a resident of each council district as established by the previous reapportionment commission. The
members shall be appointed by the mayor and confirmed by the council in the manner prescribed in
section 13-4.
(d) The year 1991 and every tenth year thereafter shall be reapportionment years. The
reapportionment commission shall be appointed and confirmed by March 1 of the reapportionment
year, and shall file a reapportionment plan with the county clerk by December 31 of the
reapportionment year.
(e) The county clerk shall furnish all necessary technical and secretarial services for the
reapportionment commission. The council shall appropriate necessary funds to enable the
commission to carry out its duties.
(f) The reapportionment commission shall be guided by the following criteria in establishing the
boundaries of the council districts:
(1) No district shall be drawn to unduly favor or penalize a person or political faction;
(2) Insofar as possible, districts should be contiguous and compact;
(3) District lines shall, where possible, follow permanent and easily recognizable features;
(4) Districts shall have approximately equal resident populations as required by applicable
constitutional
provisions.
(g) The district boundaries as established by the reapportionment commission shall be in effect at the
first regularly scheduled council election following the filing of the plan and for any subsequent
council election. The district boundaries in effect prior to the filing of the reapportionment plan shall
remain in effect during the duration of the term of all councilmembers elected or appointed to
represent such districts until the expiration of the full term of such councilmembers, including any
election held to fill an unexpired term under section 3-4.
Charter of the County of Hawaii § 3-17 (1990) (emphases added).
2. The Honorable Riki May Amano presided.
3. The effect of the parties' stipulation to amend the first amended complaint and for entry of judgment, was "to
withdraw [Appellants'] allegations that the Commission failed to use a'rational or objective methodology'... and
wrongfully submerged communities of interest into larger districts but not [Appellants'] allegations as to the
population base that the Commission used."
4. Yuen's affidavit states that "in drafting the charter language which
provides that districts should have 'approximately equal resident populations
as required by applicable constitutional provision' the intent was that the
degree of equality only be as constitutionally mandated." (Emphasis added.)
This reference to the charter commission's "intent" merely confirms what is
stated in the criteria in Charter section 3-17(f).
5. Obviously, a person who otherwise ostensibly falls within such
categories but establishes a present intent to remain in the county and
exhibits indicia that his or her presence is something other than merely
transitory may establish resident status. See Black's Law Dictionary at 1309.
6. Inasmuch as we determine the phrase "resident populations" to be plain
and unambiguous, we need not examine the 1990 charter commission's records to
ascertain the county electors' intent in adopting the phrase. In any event,
Appellants maintain that aside from evidence that the charter commission
"clearly rejected the use of 'registered voters' as a base because that
provision was already under [legal] attack[,] . . . [t]he rest of the charter
commission's records is silent." County Appellees do not cite to the charter
commission's records to support the Commission's interpretation. Hence, there
is no instructive "legislative" history concerning the term "resident
populations."
7. Reynolds is the "seminal decision in defining the 'one man, one vote'
doctrine[.]" Calderon v. Los Angeles, 481 P.2d 489, 491 (Cal. 1971).
8. The Brown majority noted that the appellants "limited their challenge
to the alleged dilution of their voting power resulting from the one
representative given to" the subject county and, therefore, the issue was
"not whether a 16% average deviation and an 89% maximum deviation . . . [was]
constitutionally permissible." 462 U.S. at 846. Hence, the Brown majority
believed it was "not required to decide whether Wyoming's nondiscriminatory
adherence to county boundaries justifie[d] the population deviations," id.,
which is the second prong of the two-part "ultimate inquiry" whether the
population disparities among the districts exceed constitutional limits.
However, Justice Brennan, authoring the dissenting opinion in Brown, in which
three justices joined, agreed that "Wyoming's long-standing policy of using
counties as the basic units of representation [was] a rational one," but
maintained that the deviations in Wyoming's plan, "even if justified by state
policy, [were not] within the constitutionally tolerable range of size." Id.
at 853 (Brennan, J., dissenting, joined by White, Marshall, and Blackmun,
JJ.).
9. In their opening brief, Appellants list the nine "Land Districts" as "North Hilo, South Hilo, Puna, Kau, South
Kona, North Kona, South Kohala, North Kohala, and Hamakua." They calculate the differences between total
population and total population less nonresidents as follows: -11 in North Hilo, -810 in South Hilo, -28 in Puna, -6
in Kau, -6 in South Kona, -5 in North Kona, -5 in South Kohala, and no change in North Kohala and Hamakua.
Appellants also contend that "the 'permanent residents' population base for State legislative districts on the island is
147,806 persons and the 'resident populations' base for coun council districts on the island is 148.677 a
difference of 871 persons." (Emphases in original.) They argue that "871 is a statistically significant number in this
case because most of these individuals reside in a single council district."
In contrast, County Appellees point out the following:
For [D]istrict 8, the .286% above 5% is equivalent to about 47 persons. For [D]istrict 2, the difference of.607%
above 5% is equivalent to 100 persons. Thus, even if Appellants' population base were accepted as the only required
base, the presumption of constitutionality could be achieved by shifting this small number of persons less than 200
persons in a population of over 147,000.
10. Using County Appellees' "total" population base, the deviation between District 6, with the lowest population,
and District 9, with the highest population, is 8.62%.
IN THE SUPREME COURT OF THE STATE OF HAWAII
--000---
CITIZENS FOR EQUITABLE AND RESPONSIBLE GOVERNMENT,
a Hawaii nonprofit corporation; BRENDA J. FORD;
STANLEY A. BOREN; FLOYD H. LUNDQUIST; MARLENE E. LUNDQUIST;
RONALD C. PHILLIPS, Plaintiffs-Appellants
and
BEVERLY BYOUK and SANDRA W. SCARR, Plaintiffs-Appellees
VS.
COUNTY OF HAWAI'I; COUNTY CLERK, COUNTY OF HAWAII; LLOYD
VAN DE CAR, CHAIRMAN, COUNTY OF HAWAII 2001
REAPPORTIONMENT COMMISSION, Defendants-Appellees
NO. 25614
APPEAL FROM THE THIRD CIRCUIT COURT
(CIV. NO. 02-1-0092)
ORDER OF CORRECTION
(By: Acoba, J.)
Upon review of the opinion of the court filed in this case on July 22, 2005, it appears that the
civil number reflected on page 1 of the opinion, Civ. No. 01-1-0092, is incorrect. Therefore,
IT IS HEREBY ORDERED that the civil number is corrected to read: Civ. No. 02-1-0092.
IT IS FURTHER ORDERED that the clerk of the court is directed to incorporate the foregoing
change in the original opinion and take all necessary steps to notify the publishing agencies of
this change.
DATED: Honolulu, Hawaii, July 28, 2005.
NO. 24900
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
CITIZENS FOR EQUITABLE AND RESPONSIBLE GOVERNMENT,
a Hawaii nonprofit corporation; BRENDA JOYCE FORD,
SANDRA WOOD SCARR and STANLEY ALFRED BOREN, Petitioners,
vs.
COUNTY CLERK, COUNTY OF HAWAII; LLOYD VAN DE CAR,
CHAIRMAN, COUNTY OF HAWAII 2001 REAPPORTIONMENT COMMISSION;
and COUNTY OF HAWAII, Respondents.
ORIGINAL PROCEEDING
ORDER
(By: Moon, C.J., Levinson, Nakayama,
Ramil, and Acoba, JJ.)
Upon consideration of the petition for a writ of mandamus filed by Citizens for Equitable and
Responsible Government, Brenda Joyce Ford, Sandra Wood Scarr, and Stanley Alfred Boren, it
appears that: (1) Petitioners ask this court to order the respondents to set aside the Hawaii County
reapportionment plan filed on December 28, 2001 and to order respondents to accept a new
reapportionment plan prepared by a special master appointed by this court; (2) mandamus relief
is available to compel an official to perform a duty allegedly owed to an individual only if the
individual's claim is clear and certain, the official's duty is ministerial and so plainly prescribed
as to be free from doubt, and no other remedy is available. Barnett v. Broderick, 84 Hawaii 109,
929 P.2d 1359 (1996); and (3) Petitioners fail to meet the standard for the issuance of a writ of
mandamus. Therefore,
IT IS HEREBY ORDERED that the petition for writ of mandamus is denied without prejudice to
Petitioners seeking relief in the circuit court.
DATED: Honolulu, Hawaii, February 21, 2002.