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HomeMy WebLinkAboutCommunication 07 Supreme Court Opinion Lincoln S.T. Ashida William P. Kenoi Corporation Counsel Mayor Katherine A. Garson Assistant Corporation Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720-4262(808) 961-8251Fax (808) 961-8622 May 4, 2011 MEMORANDUM TO: Rene Siracusa, Chairperson Redistricting Commission FROM: Michael J. Udovic Deputy Corporation Counsel SUBJECT: Hawai‘i Supreme Court Case Citizens for Equitable and Responsible Government v. County of Hawai‘i, et al. Pursuant to the request of the members of the Redistricting Commission, the above referenced case decided by the Supreme Court of the State of Hawai‘i is provided. Encl. COMM.7 Hawai`i County is an Equal Opportunity Employer and Provider 120 P.3d 217 Page 1 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) part and denied in part. Hawai Supreme Court of ‘i. CITIZENS FOR EQUITABLE AND RESPONSI-Nakayama, J., filed concurring and dissenting Hawai BLE GOVERNMENT, a ‘i nonprofit corpora-opinion, in which Moon, C.J., joined. tion; Brenda J. Ford; Stanley A. Boren; Floyd H. Lundquist; Marlene E. Lundquist; Ronald C. Phillips, Nakayama, J., filed dissenting opinion on recon- Plaintiffs-Appellants sideration in which Moon, C.J., joined. and Beverly Byouk and Sandra W. Scarr, Plaintiffs- West Headnotes Appellees v. 863 [1] Appeal and Error 30 COUNTYHAWAICountyCounty OF ‘i; Clerk, HawaiCounty Of‘i; Lloyd Van de Car, Chairman, 30 Appeal and Error HawaiReapportionment of‘i 2001 Commission, 30XVI Review Defendants-Appellees. 30XVI(A) Scope, Standards, and Extent, in General No. 25614. 30k862 Extent of Review Dependent on July 22, 2005. Nature of Decision Appealed from As Corrected July 28, 2005. 30k863 k. In General. Most Cited Cases As Amended on Reconsideration Sept. 22, 2005. Order Granting Reconsideration in Part and Denying Unlike other appellate matters, in reviewing Reconsideration in Part Sept. 22, 2005. summary judgment decisions, an appellate court steps into the shoes of the trial court and applies the same Background: Citizens' groups and concerned indi- legal standard as the trial court applied, finding sum- viduals sued county, requesting declaratory ruling mary judgment to be appropriate if the pleadings, that county commission's plan for reapportionment of depositions, and answers to interrogatories, and ad- county council districts was invalid. The Third Cir- missions on file, together with the affidavits, if any, cuit Court granted partial summary judgment in favor show that there is no genuine issue of material fact of county, and parties entered into stipulation for and the moving party is entitled to a judgment as a entry of judgment. Plaintiffs appealed. matter of law. Holdings: The Supreme Court, Acoba, J., held that: [2] Appeal and Error 30 893(1) (1) phrase “equal resident populations” in county charter excluded nonresident college students and 30 Appeal and Error nonresident military personnel and their dependents 30XVI Review from population base for purposes of reapportioning 30XVI(F) Trial De Novo county council districts; 30k892 Trial De Novo (2) total deviation in excess of 10 percent in electoral 30k893 Cases Triable in Appellate reapportionment plan presents prima facie case of Court discrimination in violation of federal equal protection 30k893(1) k. In General. Most Cited clause; Cases (3) rational government policy will justify total de- viation slightly exceeding 10 percent threshold; and (4) total deviation of 10.89 percent in this case did A trial court's conclusions of law are reviewed de not violate equal protection. novo on appeal under the right/wrong standard, and so are not binding upon the appellate court and are freely reviewable for correctness. Affirmed; motion for reconsideration granted in © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 120 P.3d 217 Page 2 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) [3] Counties 104 38[6] Constitutional Law 92 3658(1) 104 Counties 92 Constitutional Law 104II Government 92XXVI Equal Protection 104II(C) County Board 92XXVI(E) Particular Issues and Applica- 104k38 k. Nature and Constitution in Gen-tions eral.Most Cited Cases 92XXVI(E)9 Elections, Voting, and Politi- cal Rights 92k3656 Equality of Voting Power Phrase “equal resident populations” in county (One Person, One Vote) charter, by its plain and obvious meaning, excluded 92k3658 Electoral Districts nonresident college students and nonresident military 92k3658(1) k. In General. Most personnel and their dependents from population base Cited Cases for purposes of reapportioning county council dis- (Formerly 92k225.3(6)) tricts. In order to comport with equal protection, a state [4] Counties 104 3 must make an honest and good faith effort to con- struct voting districts as nearly of equal population as 104 Counties is practicable. U.S.C.A. Const.Amend. 14. 104I Creation, Alteration, Existence, and Political Functions [7] Constitutional Law 92 3658(1) 104k3 k. Creation, Existence, and Incidents in General; Charters. Most Cited Cases 92 Constitutional Law 92XXVI Equal Protection When interpreting a county charter, the court's 92XXVI(E) Particular Issues and Applica- foremost obligation is to ascertain and give effect to tions the intention of the county, which is to be obtained 92XXVI(E)9 Elections, Voting, and Politi- primarily from the language contained in the charter cal Rights itself,and, where the language of the charter is plain 92k3656 Equality of Voting Power and unambiguous, the court's only duty is to give (One Person, One Vote) effect to its plain and obvious meaning. 92k3658 Electoral Districts 92k3658(1) k. In General. Most [5] Constitutional Law 92 3657 Cited Cases (Formerly 92k225.3(6)) 92 Constitutional Law 92XXVI Equal Protection In order to comport with equal protection, when 92XXVI(E) Particular Issues and Applica- a state apportions voting districts, whatever the tions means of accomplishment, the overriding objective 92XXVI(E)9 Elections, Voting, and Politi- must be substantial equality of population among the cal Rights various districts, so that the vote of any citizen is 92k3656 Equality of Voting Power approximately equal in weight to that of any other (One Person, One Vote) citizen in the state. U.S.C.A. Const.Amend. 14. 92k3657 k. In General. Most Cited Cases [8] Constitutional Law 92 3659 (Formerly 92k225.3(6)) 92 Constitutional Law The equal protection clause of the United States 92XXVI Equal Protection Constitution requires that electoral representation be 92XXVI(E) Particular Issues and Applica- apportioned on a population basis. U.S.C.A. tions Const.Amend. 14. © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 120 P.3d 217 Page 3 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) 92XXVI(E)9 Elections, Voting, and Politi-ceeding 10 percent threshold above which an equal cal Rights protection violation may arise. U.S.C.A. 92k3656 Equality of Voting Power Const.Amend. 14. (One Person, One Vote) 92k3659 k. Bodies, Officers, and [11] Constitutional Law 923658(6) Elections Subject to Limitations. Most Cited Cases (Formerly 92k225.3(11)) 92 Constitutional Law 92XXVI Equal Protection The general principle of population equality in 92XXVI(E) Particular Issues and Applica- apportionment of voting districts, guaranteed by the tions federal equal protection clause, applies to local elec- 92XXVI(E)9 Elections, Voting, and Politi- tions. U.S.C.A. Const.Amend. 14. cal Rights 92k3656 Equality of Voting Power [9] Constitutional Law 92 3658(6) (One Person, One Vote) 92k3658 Electoral Districts 92k3658(6) k. Population Devia- 92 Constitutional Law tion. Most Cited Cases 92XXVI Equal Protection (Formerly 92k225.3(6)) 92XXVI(E) Particular Issues and Applica- tions 92XXVI(E)9 Elections, Voting, and Politi- Counties 104 38 cal Rights 92k3656 Equality of Voting Power 104 Counties (One Person, One Vote) 104II Government 92k3658 Electoral Districts 104II(C) County Board 92k3658(6) k. Population Devia- 104k38 k. Nature and Constitution in Gen- tion. Most Cited Cases eral.Most Cited Cases (Formerly 92k225.3(6)) Total deviation of 10.89 percent in county com- Total deviation in excess of 10 percent in elec- mission's reapportionment of county council districts toral reapportionment plan presents prima facie case did not violate equal protection, despite commission's of discrimination in violation of federal equal protec- erroneous inclusion of nonresident students and mili- . tion clause. U.S.C.A. Const.Amend. 14 tary personnel and their dependents in population base, where deviation was only slightly over 10 per- [10] Constitutional Law 92 3658(6) cent threshold which would comport with equal pro- tection guarantee, and by using total, as opposed to resident, population base, commission evidenced 92 Constitutional Law intent to achieve inclusiveness and equal representa- 92XXVI Equal Protection tion. U.S.C.A. Const.Amend. 14. 92XXVI(E) Particular Issues and Applica- tions 92XXVI(E)9 Elections, Voting, and Politi- [12] Appeal and Error 30 167 cal Rights 92k3656 Equality of Voting Power 30 Appeal and Error (One Person, One Vote) 30IV Right of Review 92k3658 Electoral Districts 30IV(B) Estoppel, Waiver, or Agreements 92k3658(6) k. Population Devia- Affecting Right tion. Most Cited Cases 30k167 k. Agreements and Stipulations. (Formerly 92k225.3(6)) Most Cited Cases Rational government policy will justify total de- On appeal from trial court's judgment in favor of viation in apportioning voting districts slightly ex- county in action challenging validity of reapportion- © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 120 P.3d 217 Page 4 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) ment plan, appellants were precluded from arguing tion of the equal protection clause of the United on appeal, and on their motion for reconsideration, States Constitution, (3) a rational government policy that the reapportionment plan fractured well-known will justify a total deviation that slightly exceeds the communities of interest, where appellants had with-10% threshold, and (4) assuming, in excluding non- drawn this argument in the trial court when the par-resident students and nonresident military personnel ties, after the trial court had granted partial summary and their dependents from the population base, the judgment in favor of county, entered into a stipula-plan of the County of Hawaii 2001 Reapportionment tion whereby the complaint was amended to with-Commission (the Commission) resulted in a total draw all remaining counts, including allegation about deviation of 10.89%, such a deviation in this unique fractured communities of interest, so that final judg-instance (a) was minimal, (b) apparently included the ment could be entered in the case. 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 [13] Appeal and Error 30 766 equal representation, and (d) was, therefore, constitu- tional. 30 Appeal and Error 30XII Briefs I. 30k766 k. Defects, Objections, and Amend- Pursuant to the Charter, Defendant-Appellee ments. Most Cited Cases County of Hawai‘i initiated a reapportionment of its county council districts in 2001. The Commission On appeal from trial court's judgment in favor of was appointed and confirmed in accordance with a countyreappor- in action challenging validity of provision in the Charter requiring that in 1991, and tionment plan, the Supreme Court did not need to every tenth year thereafter, a commission be estab- address appellants' argument that “administrative lished to determine the boundaries of council dis- convenience” was the only articulated reason given tricts, and to file a reapportionment plan by Decem- countyreapportionment by commission's records FN1 ber 31 of those years. A series of public meetings reapportionment for the plan, where such argument and hearings was held throughout Hawai‘i County, was not presented as a discernable legal argument in during which private speakers argued that the Com- appellants' briefs. Rules App.Proc., Rule 28(b)(7). mission was using the wrong population base and **220 *321 should exclude therefrom nonresident **218 Michael J. Matsukawa, on the briefs, for plain- college students and nonresident military personnel tiffs-appellants. and their dependents. The Commission adopted a reapportionment plan (the Commission's plan) and Patricia K. O'Toole, Deputy Corporation Counsel, filed it as required with the County Clerk. The Com- CountyHawai of ‘i, on the briefs, for defendants- mission's plan provided for a total resident population appellees. base that included nonresident college students and nonresident military personnel and their dependents. **219 LEVINSON,ACOBA, and DUFFY, JJ.; with NAKAYAMA, J., concurring separately and dissent- FN1. Section 3-17 of the Charter under ing, with whom MOON, C.J., joins. which the Commission acted states as fol- lows: Opinion of the Court by ACOBA, J. *320 We hold that (1) the phrase “equal resident (a) There shall be a county reapportion- populations” in section 3-17(f)(4) of the Charter of ment commission which shall establish the County of Hawaii (the Charter) excludes nonresi- the boundaries of the council districts. dent college students and nonresident military per- sonnel and their dependents from the population base (b) The initial reapportionment commis- for purposes of reapportioning county council dis- sion shall consist of seven members, two tricts of the County of Hawai‘i, (2) a total deviation of whom shall be residents of the com- in excess of 10% in an electoral reapportionment plan bined judicial districts of North and South presents a prima facie case of discrimination in viola- Hilo, one from the judicial district of © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 120 P.3d 217 Page 5 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) Puna, one from the judicial district of Kau, one from the combined judicial dis- (4) Districts shall have approximately tricts of North and South Kona, one from equal resident populations as required by the combined judicial districts of North applicable constitutional provisions. and South Kohala, and one from the judi- cial district of Hamakua. The members (g) The district boundaries as established shall be appointed by the mayor and con- by the reapportionment commission shall firmed by the council in the manner pre- be in effect at the first regularly scheduled scribed in section 13-4. council election following the filing of the plan and for any subsequent council elec- (c)Each subsequent reapportionment tion. The district boundaries in effect prior commission shall consist of nine mem- to the filing of the reapportionment plan bers. One member shall be a resident of shall remain in effect during the duration each council district as established by the of the term of all councilmembers elected previous reapportionment commission. or appointed to represent such districts un- The members shall be appointed by the til the expiration of the full term of such mayor and confirmed by the council in the councilmembers, including any election manner prescribed in section 13-4. held to fill an unexpired term under sec- tion 3-4. (d) The year 1991 and every tenth year thereafter shall be reapportionment years. Charter of the County of Hawaii § 3-17 The reapportionment commission shall be (1990) (emphases added). appointed and confirmed by March 1 of the reapportionment year, and shall file a Subsequent to the filing of the Commission's reapportionment plan with the county plan, Plaintiffs-Appellants Citizens for Equitable and clerk by December 31 of the reapportion- Responsible Government, Brenda J. Ford, Stanley A. ment year. Boren, Floyd H. Lundquist, Marlene E. Lundquist, Ronald C. Phillips, (collectively, Appellants) and (e) The county clerk shall furnish all nec- Plaintiffs-Appellees Beverly Byouk and Sandra W. essary technical and secretarial services Scarr filed a Complaint and First Amended Com- for the reapportionment commission. The plaint against County of Hawai‘i and other Defen- council shall appropriate necessary funds dants-Appellees, the County Clerk, Hawai‘i County to enable the commission to carry out its and Llyod Van De Car, Chairman of the Commission duties. (collectively, County Appellees) in the third circuit FN2 requesting, inter alia, a declara- court (the court) (f) The reapportionment commission shall tory ruling that the Commission's plan was invalid. be guided by the following criteria in es- tablishing the boundaries of the council FN2. The Honorable Riki May Amano pre- districts: sided. (1) No district shall be drawn to unduly Appellants moved for partial summary judgment favor or penalize a person or political fac- on the ground the Commission used the wrong popu- tion; lation base and that, therefore, the Commission's plan was unconstitutional because its total deviation from (2) Insofar as possible, districts should be the ideal mean exceeded 10%. Appellants appended contiguous and compact; to their motion for summary judgment a letter dated October 25, 1989, written by Christopher J. Yuen (Yuen), the attorney representing the Commission (3) District lines shall, where possible, during the drafting of the reapportionment plan, for follow permanent and easily recognizable the proposition that the Commission was advised to features; use the same population base as used by the State © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 120 P.3d 217 Page 6 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) Reapportionment Commission. On June 20, 2002, request an order (1) invalidating the Commission's County Appellees filed an affidavit by Yuen to rebut plan, (2) appointing a master to prepare a new redis- Appellants' proposition. Appellants moved to strike tricting plan using the correct population base, and the affidavit. (3) granting such other appropriate relief. Following a hearing, the court denied Appellants' III. motion and sua sponte granted partial summary [1][2] “Unlike other appellate matters, in review- judgment in favor of County Appellees. The court did ing summary judgment decisions[,] an appellate court **221 *322 not issue findings of fact or conclusions of law, but in steps into the shoes of the trial court and its July 19, 2002 order stated, inter alia, as follows: applies the same legal standard as the trial court ap- plied.” Beamer v. Nishiki, 66 Haw. 572, 577, 670 P.2d 1264, 1270 (1983). “Summary judgment is ap- The [c]ourt finds that the adoption by the ... propriate if the pleadings, depositions, and answers to Commission of a resident population base which interrogatories, and admissions on file, together with did not exclude non-resident military personnel and the affidavits, if any, show that there is no genuine their dependents and did not exclude non-resident issue of material fact and the moving party is entitled university students in the 2001 council redistricting to a judgment as a matter of law.” Pac. Int'l Serv. plan was proper. Corp. v. Hurip, 76 Hawai‘i 209, 213, 873 P.2d 88, 92 (1994). A trial court's conclusions of law are re- The [c]ourt also finds that there was no unconsti- viewed de novo under the right/wrong standard. tutional deviation in the population count in the Fujimoto v. Au, 95 Hawai‘i 116, 137, 19 P.3d 699, county council districts as set forth in the 2001 720 (2001). Under this standard, the trial court's con- council redistricting plan adopted by the ... Com- clusions of law are not binding upon the appellate mission. court and are freely reviewable for its correctness. Id. Following the court's ruling, the parties agreed to IV. withdraw all remaining counts so that final judgment As to point (1), the court did not rule on Appel- FN3 could be entered in the case. The court entered lants' request to strike an affidavit of the Commis- final judgment in favor of County Appellees and sion's attorney. Appellants assert that the affidavit of against Appellants on January 24, 2003. Appellants the Commission's attorney is not part of the Commis- filed their notice of appeal on January 31, 2003. sion's records and contains the opinion and recollec- tion of the attorney ten years after-the-fact. County FN3. The effect of the parties' stipulation to Appellees maintain that they offered the affidavit of amend the first amended complaint and for the Commission's attorney to clarify that the letter in entry of judgment, was “to withdraw [Ap- Appellants' motion stated only that there was a dif- pellants'] allegations that the ... Commission ference in reapportionment between using residents, failed to use a ‘rational or objective method- as opposed to registered voters, in determining the ology’... and wrongfully submerged com- population base and that the affidavit was not intro- munities of interest into larger districts but duced to reflect the intent of the charter commission. not [Appellants'] allegations as to the popu- FN4 Inasmuch as the affidavit was not offered with lation base that the ... Commission used.” respect to the intent of the charter commission and is not necessary to our interpretation of the phrase II. “resident populations,” see infra, we do not address On appeal, Appellants maintain that the court Appellants' point (1). erred in (1) refusing to strike the affidavit of the Commission's counsel, (2) concluding that the Com- FN4. Yuen's affidavit states that “in drafting mission could include nonresident university students the charter language which provides that dis- and nonresident military personnel and their depend- tricts should have ‘approximately equal ents in the population base, (3) deciding that the total resident populations as required by applica- deviation between county council districts in the re- ble constitutional provision’ the intent was districting plan did not exceed constitutional limits, that the degree of equality only be as consti- and (4) ruling that the redistricting plan is valid. They © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 120 P.3d 217 Page 7 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) tutionally mandated.” (Emphasis added.) The Commission interpreted the Charter phrase **222 *323 This reference to the charter commission's “resident populations” to encompass all “intent” merely confirms what is stated in persons who “reside within the county” as reflected the criteria in Charter section 3-17(f). in the federal census and, accordingly, did not ex- clude nonresident university students and nonresident military personnel and their dependents in the popu- V. lation base for the reapportionment plans. County [3] The primary issue on appeal, Appellants' Appellees argue that the Commission's interpretation point (2), is whether nonresident college students and of the phrase was a discretionary act, and, thus, under nonresident military personnel and their dependents 75 Haw. 463, 868 P.2d 1183 Kawamoto v. Okata, should be excluded from the population base of Ha- (1994), the actions of the Commission should be ac- wai‘i County's reapportionment of city council dis- cepted unless an abuse of discretion is shown. tricts. The Charter mandates that “[d]istricts shall haveapproximately equal resident populations as required by applicable constitutional provisions[,]” [4] “The interpretation of the charter is similar to Charter § 3-17(f)(4) (emphasis added), see supra note the interpretation of a statute.” Maui County Council v. Thompson, 84 Hawai‘i 105, 106, 929 P.2d 1355, 1, but fails to define the phrase “resident popula- tions.” 1356 (1996). When interpreting a statute, Appellants first argue that “resident populations” our foremost obligation is to ascertain and give ef- should be interpreted in the same manner as that term fect to the intention of the legislature[,] which is to is applied in the apportionment of state representative be obtained primarily from the language contained districts, that is, by using a permanent resident popu-in the statute itself. And where the language of the lation base. Appellants refer to an amendment made statute is plain and unambiguous, our only duty is to Article IV of the Constitution of the State of Ha-to give effect to its plain and obvious meaning. waii in 1992, when voters statewide voted to use a “permanent resident” population base for apportion- Id. (quoting State v. Baron, 80 Hawai‘i 107, 113, ing legislative districts. The amendment mandated 905 P.2d 613, 619 (1995)) (emphasis added). In this that only residents having their domiciliary in the regard, a common definition of “resident” is State of Hawai‘i may be counted in the population [a]ny person who occupies a dwelling within the base for the purpose of reapportioning legislative State, has a present intent to remain within the districts. Article IV of the Constitution of the State of State for a period of time, and manifests the genu- Hawaii states in relevant part as follows: ineness of that intent by establishing an ongoing physical presence within the State together with in- The commission shall allocate the total number of dicia that his presence within the State is something members of each house of the state legislature be-other than merely transitory in nature. ing reapportioned among the four basic island units namely: (1) the island of Hawaii, (2) the islands of Black's Law Dictionary 1309 (6th ed.1990) (em- Maui, Lanai, Molokai and Kahoolawe, (2) the is- phases added). SeeIn re Irving, 13 Haw. 22, 24 land of Oahu and all other islands not specifically (1900) (“[T]he primary significance of the word enumerated, and (4) the islands of Kauai and Nii- ‘residence’ as used in the constitution is the same as hau, using the total number of permanent residents domicil[e]-a word which means the place where a in each of the basic island units and computed by man establishes his abode, makes the seat of his the method known as the method of equal propor- property, and exercises his civil and political rights.” tions; except that no basic island unit shall receive (Quoting Chase v. Miller, 41 Pa. 403, 420 less than one member in each house. (Pa.1862))). This definition of “resident” would ex- clude any person who did not exhibit a present intent Haw. Const. art. IV, § 4 (amended 1992) (em-to remain within Hawai‘i County for more than a phasis added). However, the amendment to Article transitory period. IV only applies to state legislative redistricting, not county council redistricting. Generally, college students from outside Hawai‘i County who lack a present intent to remain in the © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 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. 120 P.3d 217 Page 9 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) dependents extracted. The third chart expressed a “resident populations” avoids the anomalous result of deviation of 10.893%. The difference in population counting nonresidents in the reapportionment plan bases between the first chart, showing a total popula-when those nonresidents, pursuant to HRS § 11-13, tion of 148,677, and the third chart, showing a total cannot register to vote. population minus nonresidents of 147,806, confirms Appellants' calculation in their opening brief that VIII. using information from the Commission's computer A. database, 871 “nonresidents ... should have been ex- In line with our holding, the Commission should cluded from the population base.” County Appellees have excluded the said nonresidents from the redis- do not raise any objection to this. tricting population base. However, Appellants do not argue that the use of the wrong population base alone VII. invalidates the Commission's plan, but, rather, that We observe further that the exclusion of identifi-the use of the wrong population base created an un- able nonresidents from the population base is consis-constitutional deviation. Even if Appellants had ar- tent with the rules for determining “residency” for gued that the plan was void for being based on the election purposes under Hawaii's state election law, wrong population, we observe that the language of Hawai‘i Revised Statutes (HRS) chapter 11. HRS Charter section 3-17(f)(4) would bring us back to the chapter 11 governs “all elections, primary, special constitutional question. Section 3-17(f)(4) states that primary, general, special general, special, or county.”“[d]istricts shall have approximately equal resident HRS § 11-3 (1993) (emphasis added). Pursuant to populations as required by applicable constitutional HRS § 11-11 (1993), the “county clerk shall be re-provisions.” (Emphases added.) Thus, assuming Ap- sponsible for voter registration in the respective pellants' calculations, infra, are correct, we address counties and the keeping of the general register and Appellants' argument in points (3) and (4) that when precinct lists within the county.” HRS § 11-13 (1993) nonresident military personnel, their dependents, and provides seven rules for determining a person's “resi-university students are excluded from the population dency” for voter registration purposes. The statute base, “deviations emerge in the [r]edistricting [p]lan references students as well as military personnel as that exceed constitutional limits.” We do not believe follows: that that is the case, however. (5) A person does not gain or lose a residence B. solely by reason of the person's presence or ab-[5][6][7] The United States Supreme Court has sencewhile employed in the service of the United held that the equal protection clause of the United States or of this State, or while a student of an in-States Constitution requires that electoral representa- stitution of learning, or while kept in an institution tion “be apportioned on a population basis.” Reynolds or asylum, or while confined in a prison; v. Sims, 377 U.S. 533, 568, 84 S.Ct. 1362, 12 L.Ed.2d FN7 506 (1964). This requirement means “that a[s]tate [must] make an honest and good faith effort to con- (6) No member of the armed forces of the United struct districts ... as nearly of equal population as is States, the member's spouse or the member's de- practicable.”Kawamoto, 75 Haw. at 470, 868 P.2d at pendent is a resident of this State solely by reason 1187 (quoting Reynolds, 377 U.S. at 577, 84 S.Ct. of being stationed in this State[.] 1362 (emphases added)). The Court recognized, however, that “[m]athematical exactness or precision **224 *325 HRS § 11-13. The Commission, by is hardly a workable constitutional requirement.” relying on “the census-counted population,” included Reynolds, 377 U.S. at 533, 84 S.Ct. 1362. See persons in the population base “solely by reason of Kawamoto, 75 Haw. at 474, 868 P.2d at 1189. Ac- the person's presence” in Hawai‘i County “while em- cordingly, it adopted a flexible, “case-by-case” ap- ployed in the service” or “while a student of an insti- proach to assessing redistricting plans, providing tution of learning[.]” This counting of students and “general considerations” as follows: military personnel and their dependents based on mere presence alone conflicted with the statutorily FN7.Reynolds is the “seminal decision in mandated process for determining who may register defining the ‘one man, one vote’ doctrine[.]” to vote among the counties. The plain reading of © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 120 P.3d 217 Page 10 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) Calderon v. Los Angeles, 4 Cal.3d 251, 93 and districts that exactly correspond to the county's Cal.Rptr. 361, 481 P.2d 489, 491 (1971).five towns “based on the long tradition of overlap- ping functions and dual personnel” in the county government and “on the fact that the plan ... [did] not A[s]tate may legitimately desire to maintain the in- contain a built-in bias tending to favor particular po- tegrity of various political subdivisions, insofar as litical interests or geographic areas”). possible, and provide for compact districts of con- tiguous territory in designating a legislative appor- tionment scheme. Valid considerations may under-In view of these considerations, ... minor devia- lie such aims. Indiscriminate districting, without tions from mathematical equality among state leg- any regard for political subdivision or natural or islative districts are insufficient to make out a historical boundary lines, may be little more than prima facie case of invidious discrimination under an open invitation to partisan gerrymandering. Sin-the Fourteenth Amendment so as to require justifi- gle-member districts may be the rule in one [s]tate, cation by the State. [Supreme Court] decisions while another [s]tate might desire to achieve some have established, as a general matter, that an ap- flexibility by creating multimember or floterial dis-portionment plan with a maximum population de- tricts.Whatever the means of accomplishment, the viation under 10% falls within this category of mi- overriding objective must be substantial equality of nor deviations. A plan with larger disparities in population among the various districts, so that the population, however, creates a prima facie case of vote of any citizen is approximately equal in weight discrimination and therefore must be justified by to that of any other citizen in the [s]tate. the [s]tate. ....Brown v. Thomson, 462 U.S. 835, 842-43, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983) (internal quotation marks and citations omitted). SeeKawamoto, 75 So long as the divergences from a strict population Haw. at 474, 868 P.2d at 1189. standard are based on legitimate considerations in- cident to the effectuation of a rational state policy, some deviations from the equal-population princi-[10] At issue in Brown was a Wyoming reappor- ple are constitutionally permissible with respect to tionment plan that allocated one of sixty-four seats in the apportionment of seats in either or both of the the state's house of representatives to a county with a two houses of a bicameral state legislature. deviation of 60% below the mean. Id. at 837, 843, 103 S.Ct. 2690. Nevertheless, the Supreme Court upheld the plan on the following bases: (1) it was **225 *326 Reynolds, 377 U.S. at 578-79, 84 S.Ct. “undisputed” that Wyoming's policy of ensuring that 1362 (emphases added). SeeSwann v. Adams, 385 each county had one representative was “free from U.S. 440, 443-44, 87 S.Ct. 569, 17 L.Ed.2d 501 any taint of arbitrariness or discrimination”; (2) (1967) (reversing a decision upholding a reappor- “population equality [was] the sole other criterion tionment plan where the state failed to present, and used”; and (3) “there [was] no built-in bias tending to the district court failed to articulate, “acceptable favor particular political interests or geographic ar- reasons for the variations” of 30% among senate eas.”Id. at 843-44, 103 S.Ct. 2690. The Brown ma- districts and 40% among house districts). jority approved of the Wyoming plan as “an unusu- ally strong example of an apportionment plan the [8][9] The “general principle of population population variations of which [were] entirely the equality ... applies to state and local elections[.]” result of the consistent and nondiscriminatory appli- Abate v. Mundt, 403 U.S. 182, 185, 91 S.Ct. 1904, 29 FN8 cation of a legitimate state policy.” Id. at 844, 103 L.Ed.2d 399 (1971). The Supreme Court has inti- S.Ct. 2690. Thus, the “ultimate inquiry” is to deter- mated that “slightly greater percentage deviations mine “whether the legislature's plan may reasonably may be tolerable for local government apportionment be said to advance a rational state policy and, if so, schemes” and that “particular circumstances and whether the population disparities among the districts needs of a local community as a whole may some- that have resulted from the pursuit of this plan exceed times justify departures from strict equality.” Id. See constitutional limits.”Id. at 843, 103 S.Ct. 2690 (in- id. at 186-88, 91 S.Ct. 1904 (upholding a county re- ternal quotation marks, brackets, and citation omit- apportionment plan with a total deviation of 11.9% © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 120 P.3d 217 Page 11 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) ted) (emphasis added). the ideal mean (the former category), thereby result- FN9 County Appel- ing in a total deviation of 10.89%. lees do not concede that there is such a deviation, FN8. The Brown majority noted that the ap- maintaining that “[a]ny deviation is the result of the pellants “limited their challenge to the al- artificial construct of the Appellants in determining leged dilution of their voting power resulting that the numbers they believe should have been used from the one representative given to” the are the only correct numbers, when it was clearly subject county and, therefore, the issue was within the discretion of the [C]ommission to use the “not whether a 16% average deviation and FN10 However, as stated numbers which it did use.” an 89% maximum deviation ... [was] consti- supra, to support their motion for partial summary tutionally permissible.” 462 U.S. at 846, 103 judgment, County Appellees submitted the Rosen- S.Ct. 2690. Hence, the Brown majority be- brock affidavit, which arrives at the same 10.89% lieved it was “not required to decide whether figure as the total deviation when nonresident stu- Wyoming's nondiscriminatory adherence to dents and nonresident military and their dependents county boundaries justifie [d] the population are excluded from the total population. deviations,” id.,which is the second prong of the two-part “ultimate inquiry”-whether FN9. In their opening brief, Appellants list the population disparities among the districts exceed constitutional limits. However, Jus-the nine “Land Districts” as “North Hilo, tice Brennan, authoring the dissenting opin-South Hilo, Puna, Kau, South Kona, North ion in Brown, in which three justices joined, Kona, South Kohala, North Kohala, and agreed that “Wyoming's long-standing pol-Hamakua.” They calculate the differences icy of using counties as the basic units of between total population and total popula- representation [was] a rational one,” but tion less nonresidents as follows: -11 in maintained that the deviations in Wyoming's North Hilo, -810 in South Hilo, -28 in Puna, plan, “even if justified by state policy, [were -6 in Kau, -6 in South Kona, -5 in North not] within the constitutionally tolerable Kona, -5 in South Kohala, and no change in range of size.” Id. at 853, 103 S.Ct. 2690 North Kohala and Hamakua. (Brennan, J., dissenting, joined by White, Marshall, and Blackmun, JJ.). Appellants also contend that “the ‘perma- nent residents' population base for State IX.legislative districts on the island is A.147,806 persons ... and the ‘resident popu- [11] The Commission's plan divides Hawai‘i lations' base for county council districts on *327 **226 County into nine districts. Using the the island is 148,677 ..., a difference of “resident population” base (excluding nonresident 871 persons.” (Emphases in original.) military personnel, their dependents, and university They argue that “871 is a statistically sig- students) of 147,806, propounded by Appellants, the nificant number in this case because most ideal mean is 16,423 (147,806 divided by nine). Ac-of these individuals reside in a single cording to Appellants' briefs and the record, the dif-council district.” ference between the ideal mean and the actual “resi- dent population” of each district represents that dis- In contrast, County Appellees point out trict's “deviation,” which is translated into a deviation the following: percentage. The difference between the district with the resident population that exceeded the ideal mean For [D]istrict 8, the .286% above 5% is by the greatest percentage and the district with the equivalent to about 47 persons. For resident population that fell below the ideal mean by [D]istrict 2, the difference of .607% above the greatest percentage constitutes the redistricting 5% is equivalent to 100 persons. Thus, plan's “total deviation.” According to Appellants' even if Appellants' population base were calculations, the resident population of District 2 was accepted as the only required base, the 6.20% below the ideal mean (the latter category) and presumption of constitutionality could be the resident population of District 8 was 4.69% above achieved by shifting this small number of © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 120 P.3d 217 Page 12 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) persons-less than 200 persons in a popula-say that no rational basis underlay the 10.89% devia- tion of over 147,000. tion because, akin to the approach exemplified by the commission member's testimony in Riley, the Com- mission in the instant case, by using “total” popula- FN10. Using County Appellees' “total” tion, evidenced an intent to achieve inclusiveness and population base, the deviation between Dis- equal representation. Cf.Calderon v. Los Angeles, 4 trict 6, with the lowest population, and Dis- Cal.3d 251, 93 Cal.Rptr. 361, 481 P.2d 489, 493 trict 9, with the highest population, is (1971) (“Adherence to a population standard, rather 8.62%. than one based on registered voters, is more likely to guarantee that those who cannot or do not cast a bal- B. lot may still have some voice in government.” (Em- Using Appellants' deviation figure for our analy- phasis added.)). sis, a total deviation of 10.89% exceeds the Supreme Court's threshold and, therefore, creates a prima facie For at the second meeting of the Commission, case of discrimination in violation of the equal pro- Commissioner Mark Van Pernis made a motion to tection clause. The Supreme Court of Arkansas has “include all people”: “[A]ll the people that the census addressed a county plan with a total deviation similar counted is included because, whether they vote or to the deviation of the Commission's plan here. In not, or whether they're young or old, or military or Riley v. Baxter County Election, 311 Ark. 273, 843 not, they all use county services, they all pay taxes in S.W.2d 831, 832-33 (1992), all parties stipulated that some form or shape and they all need representa- the Baxter County redistricting plan varied among the tions.” The motion was put to a vote and carried, evi- districts by 10.149%. In assessing whether a “rational dencing that the Commission was motivated by in- policy to justify a variance over 10%” existed, id. at clusiveness as opposed to a discriminatory purpose. 833, the Arkansas Supreme Court acknowledged the “systematic approach” taken by the election commis- sion. The commission had divided “the total popula-Importantly, the Charter required the Commis- tion” of Baxter County by eleven, the number of dis-sion to consider three additional factors in redistrict- tricts to be apportioned. ing. In addition to the “approximately equal resident populations” requirement at issue here, Charter sec- tion 3-17(f) required the Commission to consider the “The districts with population already closest to following criteria: 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, (1) No district shall be drawn to unduly favor or a commission member testified that “the overriding penalize a person or political faction; principle” followed by the commission in redistrict- ing “was equal representation.” Id. The Arkansas (2) Insofar as possible, districts should be contigu- Supreme Court concluded that the commission's ous and compact; “systematic approach ... reveal[ed] a rational policy of redistricting in Baxter County” and that “the (3) District lines shall, where possible, follow per- 10.149% variance [was] only slightly over the ac- manent and easily recognizable features;.... ceptable 10% variation.” Id. Thus, it was held that the **227 *328 trial court did not err in finding that the These considerations governed the Commission's commission overcame the prima facie case of dis- determination. The statements supra at the second crimination. Id. meeting of the Commission evidenced the Commis- sion's commitment against favoring or penalizing a Similarly here, the 10.89% total deviation of the person or political faction in consonance with Charter Commission's plan is “only slightly over the accept- Section 3-17(f)(1). able 10% variation.” Id. It is true, as Appellants posit, that the Commission did not address the deviation Ultimately, the deviation stemming from a “pure question because it was working from the “total” as population” standard resulted from the Commission's opposed to “resident” population base, which pre- commitment to an inclusive model rather a discrimi- sented only an 8.62% deviation. However, we cannot © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 120 P.3d 217 Page 13 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) natory one. Appellants do not contend that the Com-added.) SeeHawaii Providers Network, Inc. v. AIG mission failed to consider other redistricting criteria Hawaii Ins. Co., 105 Hawai‘i 362, 368 n. 14, 98 P.3d under the Charter or that such criteria would not sup-233, 239 n. 14 (2004) (“[W]here the decision below port a slightly greater deviation than the 10% prima is correct it must be affirmed by the appellate court facie threshold. It should be noted that related objec-though the lower tribunal gave the wrong reason for tions were apparently waived when Appellants stipu-its action.” (Quoting Agsalud v. Lee, 66 Haw. 425, lated to withdraw the claims that the Commission 430, 664 P.2d 734, 738 (1983).));Poe v. Hawai‘i failed to use a “rational or objective methodology” Labor Relations Bd., 87 Hawai‘i 191, 197, 953 P.2d and “wrongfully submerged communities of interest 569, 575 (1998) (“Where the circuit court's decision into larger districts,” see supra note 3, thereby aban-is correct, its conclusion will not be disturbed on the doning any claim that the Commission incorrectly ground that it gave the wrong reason for its ruling.” applied the other three criteria in Charter section 3-(Quotation marks and citation omitted.)). Accord- 17(f). ingly, the court's January 24, 2003 final judgment is affirmed. Finally, we observe that Appellants do not argue, nor point to evidence in the record, that the Commis- Concurring and Dissenting Opinion by sion did not “make an honest and good faith effort to NAKAYAMA, J. in which MOON, C.J., Joins. construct districts ... of equal population as is practi-I respectfully dissent from the majority's holding reapportionment County cable [,]” Reynolds, 377 U.S. at 577, 84 S.Ct. 1362 that the plan for the of HawaiCountyCounty that the plan has “ ‘a built-in bias tending to favor ‘i ( ), as crafted by the 2001 of HawaiReapportionment particular political interests or geographic areas [,]’ ” ‘i Commission (Commis- Brown, 462 U.S. at 844, 103 S.Ct. 2690 (quoting sion), presents no equal protection violation. Abate, 403 U.S. at 187, 91 S.Ct. 1904), or that the Commission's redistricting process was “taint [ed]” reapportionment As the majority notes, a plan with “arbitrariness,” id. at 843, 91 S.Ct. 1904. What that exhibits a total population deviation of more than remains is Appellants' conclusory statement that the ten percent presumptively violates the right to equal “Commission's records do not reflect any evidence representation secured under the fourteenth amend- that justifies the [C]ommission's action to adopt a ment to the United States Constitution. Brown v. [r]edistricting [p]lan that has deviations that exceed Thomson, 462 U.S. 835, 842-843, 103 S.Ct. 2690, 77 the ideal mean by more than 10%.” Therefore, on the L.Ed.2d 214 (1983) (citing Swann v. Adams, 385 foregoing bases and under the specific circumstances U.S. 440, 444, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967)). of this case, we hold that, ultimately, the court did not That presumption of illegality may only be dispelled err in concluding that “there was no unconstitutional by showing that rational public policies outweigh the deviation in the population count in the county coun- ill effects of an apportionment scheme that materially cil districts as set forth in the 2001 council redistrict- enhances the representational power of some at the ing plan adopted by the ... Commission.” expense of others. Mahan v. Howell, 410 U.S. 315, 326, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973). **228 *329 X. Based on the foregoing, the Commission's erro- The Commission's reapportionment plan in this neous inclusion of nonresident students and military case is presumptively unconstitutional under Brown personnel and their dependents in the population base v. Thomson because it reflects a total population de- for reapportionment of Hawai‘i County council dis- viation of 10.89 percent. The excessive deviation was tricts did not ultimately result in an unconstitutional caused by the Commission's error in counting non- deviation under its reapportionment plan. Although resident students and military personnel when calcu- we do not agree with the court that the Commission's lating the ideal mean population for each of the voter population base was correct, we affirm the court's districts. decision upholding the Commission's plan because the plan complies with the mandate of Charter sec- I part company with the majority because the tion 3-17(f)(4) that the districts be comprised of “ap- heightened deviation flowing from that error cannot, proximately equal resident populations as required by asMahan v. Howell requires, be rationalized under applicableconstitutional provisions.” (Emphases any public policy the Commission was authorized to © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 120 P.3d 217 Page 14 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) pursue. Section 3-17(f) of the Hawai‘i County Char-NAKAYAMA, J., Dissenting, With Whom MOON, ter (Charter)-which enumerates the only public poli-C.J., Joins. cies the Commission may validly consider in fashion- ing district boundaries-states: Plaintiffs-Appellants Citizens for Equitable and Responsible Government, Brenda J. Ford, Stanley A. (1) No district shall be drawn to unduly favor or Boren, Floyd H. Lundquist, Marlene E. Lundquist, penalize a person or political faction; and Ronald C. Phillips (collectively, Appellants) filed a motion for reconsideration (the motion) of this court's July 22, 2005 published opinion (the opinion), (2) Insofar as possible, districts should be contigu- in which a majority of this court affirmed the deci- ous and compact; sion of the circuit court of the third circuit (the court) reapportionmentCounty to uphold the plan of the (3) District lines shall, where possible, follow per- HawaiiReapportionment of 2001 Commission (the manent and easily recognizable features; Commission). Citizens for Equitable & Responsible Gov't, at 329, 120 P.3d at 228. (4) Districts shall have approximately equal resi- dent populations as required by applicable constitu- I. tional provisions. In the motion, Appellants argue that (1) this court cannot substitute its findings for that which the Charter of the County of Hawai‘i § 3-17(f) Commission and the court should have, but did not, (1990). Inasmuch as subsection (4), under our inter- make, (2) this court cannot refer to the public testi- pretation today, forbids the inclusion of non-resident mony of Julie Jacobson, a person who is not a mem- students and military personnel in the “resident popu- ber of the Commission, as evidence of the Commis- lation” count, the Charter's stated policy is to exclude sion's unarticulated intent, (3) this court's substituted these groups from the Commission's redistricting justification for deviations in excess of 10% is no calculus. To allow the Commission to surreptitiously justification at all, (4) lack of good faith and honesty establish the district boundaries based on where these was subsumed in Appellants' assignment of error, (5) excluded groups reside-in short, to employ, de facto, the plan is invalid if the plan is constitutionally defec- a “total population” count such as that used in this tive, and (6) this court's conclusion that the court and case-undermines subsection (4)'s fundamental pur- the Commission erred in using the wrong population **229 *330 pose of equalizing the populations base, means that it should simply reverse the court's among the districts without regard to non-resident judgment. Accordingly, Appellants request that this students and military personnel. court (1) strike any reference to Jacobson's testimony, (2) strike all references to the purported justification Because no authorized public policy justifies the of the Commission for offering a plan with deviations erosion of equal representation that the current plan in excess of 10%, (3) reverse the court's judgment, engenders, the plan fails the constitutional test set and (4) invite the parties to submit further pleadings forth in Brown v. Thomson and Mahan v. Howell. as may be appropriate to the amended decision. For FN1 Accordingly, I must dissent. the reasons discussed herein, the motion for recon- sideration is granted in part as to the reference to the FN1. The County notes that the reappor-Jacobson testimony, but denied in all other re- FN1 tionment plan's total deviation figure could spects. be brought below ten percent by shifting “less than 200 persons” to other districts. FN1. Hawai‘i Rules of Appellate Procedure That remedy would seem the better course Rule 40(b) (2005) provides that a motion for than the majority's proposal to hold in place reconsideration “shall state with particularity a reapportionment plan that is based on an the points of law or fact that the moving inaccurate population count. party contends the court has overlooked or misapprehended, together with a brief argu- MOTION FOR RECONSIDERATION ment on the points raised.” LEVINSON, ACOBA, and DUFFY, JJ.; With © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 120 P.3d 217 Page 15 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) II.motion that Jacobson later retracted the statement [1] Addressing first Appellants' second point, the quoted in the opinion by rejecting the Commission's challenge to Jacobson's testimony, Appellants main-plan. It should be noted that Appellants did not chal- tain that this court “relie[d] upon the testimony of a lenge Jacobson's testimony in their reply brief, even person who is NOT a member of the Commission[, though Defendants-Appellees, County of Hawai‘i, Jacobson,] to justify the ... Commission's action be-County Clerk, County of Hawai‘i, and Lloyd Van De low” and that “[s]uch reliance is inconsistent with” Car, Chairman of the Commission (collectively, Dines v. Pacific Insurance Co., 78 Hawai‘i 325, 893 County Appellees), cited to Jacobson's testimony in P.2d 176 (1995). (Capitalization and emphasis in their answering brief. Appellants, therefore, failed to original.) However, the opinion does not state that raise Jacobson's supposed retraction of the quoted Jacobson was a member of the Commission, but statement that they tardily do now. identifies her as a Hawai‘i County Councilmember. It may be assumed that Jacobson's testimony apprised However, it appears that Jacobson had recanted the Commission of how using a total population base the quoted statement. Appellants state that at the can achieve inclusiveness and equal representation. Commission's final meeting on December 18, 2001, The opinion refers to Jacobson's testimony as fol- Jacobson “rejected her own statement.” (Emphasis in lows: original.) Upon review of the record on appeal, it appears that Jacobson's December 18, 2001 testimony FN3 [W]e cannot say that no rational basis underlay the was never made part of the record. Appellants 10.89% deviation because, akin to the approach have since attached the subsequent Jacobson testi- exemplified by the commission member's testi-mony to their motion as Appendix 32, as well as a mony in Riley, the Commission in the instant case, declaration by their attorney, which certifies that the by using “total” population, evidenced an intent to attached minutes “are public documents ... that are achieve inclusiveness and equal representation. found on the County of Hawaii website at Hawaii- county.com.” Although the subsequent Jacobson tes- timony need not be considered by this court, seeOrso ... v. City & County of Honolulu, 55 Haw. 37, 38, 514 P.2d 859, 860 (1973) (“[A] question involving evi- For at the second meeting of the Commission, dence not in the record cannot be reviewed on ap- **230 *331 Hawai‘i County Councilmember Julie peal.”) (citation omitted), in light of the fact that Ja- Jacobson testified in favor of “using the population cobson retracted her statement, a fact only now raised as the basis for the districting,” stating that, by Appellants, this court grants Appellants' request to FN4 strike any reference to the Jacobson testimony. In each human being has needs for the government doing so we observe that it is a fundamental and ele- serves [sic] and it doesn't matter if you're one mentary proposition that counsel is obligated to pre- day old, if you're 99 years old, if you vote or sent an accurate record on appeal. don't vote, or any other of those variables ... each person needs to be considered and I think espe- FN3. County Appellees attached excerpts cially with the complexity from the December 18, 2001 transcripts to their memorandum in opposition to Appel- of infrastructure issues, that we deal with, that's lants' motion for change of venue, but Ja- why it's important. cobson's testimony on pages 9-13 was not included. FN2 Opinion at 328, 120 P.3d at 227. FN4. In their response to the motion, County FN2. Appellants attach Jacobson's June 22, Appellees maintain that Jacobson's testi- 2001 testimony to their motion as Appendix mony “was given at an earlier meeting of the 31, but the testimony is already part of the Commission before any particular plan was record. before it. She later spoke in support of a par- ticular plan but did not specifically address Also, Appellants state for the first time in the the population issue. What she was clearly © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 120 P.3d 217 Page 16 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) recanting was the plan she herself submitted P.3d at 227, and “akin to the approach exemplified by to the Commission to consider.” To remove the commission member's testimony in Riley, the any doubt regarding this matter, however, Commission in the instant case, by using a ‘total’ we believe the better course is to excise such population, evidenced an intent to achieve inclusive- testimony. ness and equal representation.” Id. at 328, 120 P.3d at 227. (emphasis added). III. [2] In their first point, Appellants argue that it is Even without the Jacobson testimony, which is the “Commission's constitutional obligation, not this stricken, Commissioner Mark Van Pernis's “motion [c]ourt's burden, to offer evidence that justifies a plan to ‘include all people,’ ” which was “put to a vote that contains deviations in excess of 10%, that favor and carried, evidenc[ed] that the Commission was pre-existing [c]ounty [c]ouncil districts and that motivated by inclusiveness, as opposed to a discrimi- FN5 ‘fractures' the judicial district of Puna.” (Empha-natory purpose.” Id. Moreover, the opinion cites to sis in original.) Appellants maintain that this court three additional criteria for redistricting as mandated “overlook[ed] ... that officials in Riley[v. Baxter by section 3-17(f) of the Charter of the County of County Election Commission, 311 Ark. 273, 843 Hawaii (the Charter). See id. at 328, 120 P.3d at 227. S.W.2d 831 (Ark.1992),] actually testified to the As the opinion notes, “Appellants [did] not contend court to explain their reason for offering a plan that that the Commission failed to consider [these] other contained deviations in excess of 10% [and that] ... redistricting criteria under the Charter or that such [n]either the trial court nor the appellate court in Ri-criteria would not support a slightly greater deviation ley searched through the record to fathom the basis than the 10% prima facie threshold.” Id. for official action.” Additionally, County Appellees, in their memo- FN5. The argument that the redistricting randum in opposition to the motion for reconsidera- plan “fractures” the judicial district of Puna tion, now identify parts of the record as evidence that is addressed infra, Part IV. the Commission was guided by these other Charter- mandated criteria. First, the reapportionment plan itself reflects the Commission's consideration of the To the contrary, this court did not “overlook” the “permanent and easily recognizable features” crite- fact that the commission member in Riley “actually rion, Charter § 3-17(f)(3), inasmuch as the written testified” inasmuch as the opinion expressly states descriptions of each of the designated council dis- that “[a]t the hearing before the trial court, a commis- tricts refer to streams, shorelines, and other geo- sion member testified that ‘the overriding principle’ graphical features. *332 followed by the commission in redistricting **231 ‘was equal representation.’ ” Op. at 327, 120 P.3d at 226 (quoting Riley, 843 S.W.2d at 833) (em-Second, at their final meeting on December 18, phasis added). The rule extrapolated from Riley was 2001, the commissioners made statements that evi- that a redistricting plan survives equal protection dence serious consideration of all four criteria. One scrutiny where its variation is “only slightly over the commissioner related the Commission's task of bal- acceptable 10% variation[,]” and “the commission's ancing the equal representation criterion with the ‘systematic approach ... reveal[s] a rational policy of other three criteria: 843 S.W.2d at redistricting.’ ” Id. (quoting Riley, 833) (emphasis added). Since the Big Island population is not equally spread out geographically throughout the Island, The opinion agrees with Appellants that “the obviously the districts cannot be geographically Commission did not address the deviation question equal in size, in addition to being numerically because it was working from the ‘total’ as opposed to equal. That is why argument and controversy can ‘resident’ population base, which presented only an result. Some people or groups want a council dis- 8.62% deviation.” Id. at 328, 120 P.3d at 227. But, it trict which serves their interest in a particular was decided that similar to Riley, “the 10.89% total geographical area or a plan which serves their deviation of the Commission's plan is ‘only slightly particular or geographical or political interest. But over the acceptable 10% variation[,]’ ” id. at 328, 120 these localized special interests don't give ade- © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 120 P.3d 217 Page 17 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) quate consideration to the rest of the Island. the record, this court may rely on these grounds to affirm the court's judgment. See DelosReyes v. Kuboyama, 76 Hawai‘i 137, The Commission needs to consider all of the Is- 140, 870 P.2d 1281, 1284 (1994) (“This land and all of its people in making the best plan. court may affirm a grant of summary judg- Such plans would spread around more fairly the ment on any ground appearing in the record, benefits and detriments of equal numbers but on even if the circuit court did not rely on it.”). equal geography. IV. (Emphasis added.) Another commissioner ex- [12] [3] In their third point, Appellants argue that pressed the Commission's motivation to adopt a plan while the Commission's reliance on the total popula- ensuring that, consistent with the provisions of Char- tion base “reflects the underlying principle of the one ter sections 3-17(f)(1) and (2), “[n]o district shall be man-one vote doctrine, it does not describe a rational drawn to unduly favor or penalize a person or politi- state policy” inasmuch as it “allows an apportioning cal faction” and that districts would be “contiguous body to create legislative districts under which pre- and compact”: existing districts (and the incumbents therein) are I have no doubt in my mind that we did the very favored and [to] ‘fracture’ well-known communities best we could with creating, you know, as compact of interests because of administrative convenience and as contiguous districts as possible.... FN8 [.]” (Emphasis in original.) So we did as a Charter mandate, we did the very FN8. Appellants argue as follows: best we could wherever possible to create a[sic] compact and contiguous districts as we could. We made concerted efforts to keep communities and In offering its justification for the County subdivisions together. Again, here and there, there Reapportionment Commission's plan (in [sic] wasn't absolutely do-able because of the cen-substitution of the Commission's omis- sus tracts and numbers and all the other issues. But sion), this Court states that the Commis- **232 *333 I have no doubt in my mind that we sion's purpose must have been to use a to- did our very, very best. tal population base that would give every man, woman, child, incarcerated felon, soldier, dependent of a soldier, resident .... alien and others “representation.” I have no doubt in my mind that no specific While this statement reflects the underly- group was penalized, and no specific group was ing principle of the one man-one vote doc- favored, we did the very best we could, all of the trine, it does not describe a rational state Island and all the communities. policy. Nor does it explain how that state policy is in fact legitimately advanced by (Emphases added.) Pursuant to Riley, these a plan that is prima facie unconstitutional statements, made by the Commission members them- because it violates that one man-one vote selves, justify the slightly greater than 10% deviation. doctrine of keeping populations as equal FN6 Accordingly, this court did not “overlook” or as possible to avoid the danger of diluting FN7 “misapprehend” the Riley holding. votes. FN6. Hence, as County Appellees maintain, The extension of this statement is that the “it would be a futile exercise to remand to one man-one vote principle allows an ap- ask commissioners for a reason which they portioning body to create legislative dis- have already expressed in the vote on the tricts under which pre-existing districts motion at the June 22, 2001 meeting.” (and the incumbents therein) are favored and that “fracture” well-known communi- FN7. Inasmuch as the reapportionment plan ties of interests because of administrative and the commissioners' testimony are part of convenience, the only articulated reason © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 120 P.3d 217 Page 18 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) found in the County Reapportionment able people is “fractured” by assigning portions of Commission's records. No court has ever “upper” Puna along with portions of the adjoining **233 *334 subscribed to such a conclusion. judicial district of South Hilo to County Council District # 3 and by assigning other portions of “upper” Puna along with all of the ad- (Emphases in original.) It should be noted joining judicial district of Ka‘u and portions of the that the opinion did not reference “every non-adjoining, distant judicial district of South man, woman, child, incarcerated felon, Kona to County Council District # 6. As a result, soldier, dependent of a soldier, resident residents of Puna have one resident councilor and alien and others,” as Appellants imply in must “share” two councilors with other adjoining the quote above. The opinion did not em- districts who may or may not be a resident of Puna. ploy such a list. Indeed, Appellants stated This is a classic example of vote dilution of resi- as a point of error that “the 2001 County dents of one district in favor of residents of other Reapportionment Commission should districts. have used a population base that excluded nonresident military personnel and their As a result, residents of the “upper” Puna, whose dependents and nonresident students,” population may justify a single councilor of its (emphases added), groups which the opin- ion did discuss. own, find their interests submerged into the adjoin- ing and distant judicial districts of South Hilo, Ka‘u, and South Kona. More significantly, Council Appellants' motion attempts to clarify what was Districts # 1, 2, 3, and 4 are denominated by “Hilo obviously ambiguous in their appellate briefs-the interests,” with a statistically significant number of possibly problematic effect of the redistricting plan non-resident students (who should have been ex- FN9 According to the on “communities of interest.” cluded) in the judicial district of South Hilo. motion, the redistricting plan allegedly “fractures” the “judicial” district of Puna: (Emphasis in original.) FN9. Appellants contend that “Table Two, reproduced in Opening Brief, Appendix 25, While this explanation may have raised a con- shows how the judicial district of Puna with cern, Appellants withdrew these arguments in the 31,307 countable people is ‘fractured.’ ” January 6, 2003 stipulation to amend first amended (Emphasis in original.) But Table Two, complaint and for entry of judgment. The stipulation without explanation, does not convey the stated: specific contention that Puna was “frac- tured.” In fact, Appellants did not utilize Plaintiffs and Defendants herein stipulate to the Table Two for this proposition. Appellants amendment of the First Amended Complaint filed referenced Table Two on three occasions in here on March 6, 2002 as follows: their opening brief. The first and second ref- erences, stating that “[t]he consequence of 1.Plaintiffs withdraw and delete Paragraphs 12.a not excluding these persons from the popu- to 12.f; lation base is set forth in Table One and Ta- ble Two,” and that “[t]he statistical signifi- 2. Plaintiffs withdraw and delete Paragraphs 12.j cance of the 810 nonresidents who are lo- to 12.n. cated in the District of South Hilo is shown in Table Two,” were cryptic at best. In the The effect of the deletions is to withdraw Plain- third reference, Appellants utilized Table tiffs' allegations that the County of Hawaii 2001 Two to “show[ ] the number of persons who Reapportionment Commission failed to use a “ra- fall below or above the ideal mean for each tional or objective methodology” (¶¶ 12.a to 12.f) council district,” not to point out that Puna and wrongfully submerged communities of interest was being “fractured.” into larger districts (¶¶ 12.j to 12.n) but not Plain- tiffs' allegations as to the population base that the [T]he judicial district of Puna with 31,307 count- © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 120 P.3d 217 Page 19 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) County of Hawaii 2001 Reapportionment Com-Hilo, Puna, Ka‘u, South Kona, North Kona, South mission used (¶¶ 12.g to 12.i and 12.o to 12.p). Kohala, North Kohala and Hamakua[.] As a result, the Order for Summary Judgment 12.l. Furthermore, distinct communities of inter- **234 *335 entered herein on the population base that the est have developed and exist within CountyHawaiiReapportionment of 2001 Com-these traditional land districts, or judicial districts. mission used disposes of all issues herein leaving no other issues left for decision. 12.m. Although the reapportionment principles in Articl IV, Section 6 of the Hawaii State Consti- (Emphasis added.) Specifically, the stipulation tution state that a reapportioning body shall avoid “[w]here practicable, submergence of an area in a withdrew, inter alia, the following allegations: No Rational or Objective Methodology larger district wherein substantially different socio- economic interests predominate,” the Commission did not identify or consider the socio-economic in- 12.e. When the public provided information and terests of communities that could be determined recommendations on the assignment of communi- from public sources available to the Commission ties of interest to specific Council Districts that dif- on subjects such as education, employment and fered from the 1991 Council District boundaries poverty levels, or the effect of including communi- and the Commission's fixed geographical “starting ties of differing socio-economic interest into desig- points,” the Commission rejected the public's input nated Council Districts. and recommendations, continued to rely upon the existing 1991 Council District boundaries and its arbitrar[il]y fixed geographical “starting points” 12.n. As a consequence, even though reasonable and justified its adoption of the 2001 Reapportion-and practicable alternatives existed and even ment Plan by using arbitrary and inconsistent crite-though the public had provided the Commission ria.with background information on the differing socio-economic interest of communities, the Commission rejected such alternatives and infor- 12.f. As a consequence, the Commission's 2001 mation and, using its arbitrary geographical “start- Reapportionment Plan (1) keeps incumbents in ing points” and 1991 Council District boundaries, Council Districts based on the 1991 Council Dis- submerged communities of interest in certain areas trict boundaries, despite changes in the population into a larger district wherein substantially different for the County of Hawaii since 1991, (2) fractures socio-economic interest predominate. This conse- existing communities of interest, and (3) dilutes the quence is reflected in the Commission's action that: representative power of some communities of in- terest while inflating the representative power of (1) divided communities in the upper (or other communities of interest. northern) portion of the Puna judicial district and assigned those divided communities to two .... (2) separate Council Districts where substan- tially different socio-economic interest predomi- Submergence of Communities of Interests into nate [.] Larger Districts Where Different Socio- Economic Interests Predominate (Some emphases added and some in original.) As observed in the opinion, “[t]he effect of the parties' 12.j. For more than 100 years, governmental stipulation ... was ‘to withdraw Appellants' allega- units in Hawaii have used the traditional land dis- tions that the ... Commission failed to use a ‘rational tricts of the Island of Hawaii, now known as the or objective methodology’ ... and wrongfully sub- judicial districts, to organize government agencies merged communities of interest into larger districts and to administer government programs.... but not Appellants' allegations as to the population base that the ... Commission used.” Op. at 321 n. 3, 12.k. These traditional land districts, or judicial 120 P.3d at 220 n. 3 (brackets omitted) (emphasis districts, are the Districts of North Hilo, South added). © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 120 P.3d 217 Page 20 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) not assert that the Commission failed to con- sider the other valid criteria as mandated Appellants' withdrawal of the argument that the under the Charter. As the opinion observes, redistricting plan submerges communities of interests “related objections were apparently waived into larger districts where different socio-economic when Appellants stipulated to withdraw the interests predominate precludes a resurrection of that claims that the Commission failed to use a argument on appeal, especially on a motion for re- ‘rational or objective methodology’ and consideration.SeeAmfac, Inc. v. Waikiki Beach- ‘wrongfully submerged communities of in- comber Inv. Co., 74 Haw. 85, 114, 839 P.2d 10, 27 terest into larger districts,’ ... thereby aban- (1992) (“The purpose of a motion for reconsideration doning any claim that the Commission in- is to allow the parties to present new evidence and/or correctly applied the other three criteria in arguments that could not have been presented during Charter section 3-17(f).” Op. at 328, 120 the earlier adjudicated motion.”); Briggs v. Hotel P.3d at 227. Corp., 73 Haw. 276, 287 n. 7, 831 P.2d 1335, 1342 n. 7 (1992) (“We again remind litigants that a motion for reconsideration is not the time to relitigate old V. matters.”). Hence the alleged “vote dilution” of Puna In their fourth point, Appellants disagree with residents is not properly before this court, having this court's statement that “Appellants do not argue, been withdrawn by stipulation. This court, then, did nor point to evidence in the record, that the Commis- not “overlook” the “fracturing” of the judicial district sion did not ‘make an honest and good faith effort to of Puna because it was not a part of the appeal. construct districts ... of equal population as is practi- cable[.]’ ” Op. at 328, 120 P.3d at 227 (citation omit- ted). Appellants assert in the motion that the lack of [13] As to Appellants' contention that “the only good faith and honesty argument was “subsumed” in articulated reason found in the County Reapportion- their assignment of error and incorrectly assert that ment Commission's records” was “administrative [FN11] they “argued in their Opening Brief [ ... [that the convenience,” as discussed supra, it must be reiter- Commission] made no effort, even when informed of ated that (1) Commissioner Van Pernis's “motion to the risks that it was taking by using the wrong popu- ‘include all people,’ ” which was “put to a vote and lation base, [sic] the Commission proceeded anyway- carried, evidenc[ed] that the Commission was moti- because of administrative convenience, because it vated by inclusiveness as opposed to a discriminatory was too difficult and time-consuming to do other- purpose[,]” Op. at 328, 120 P.3d at 227 and (2) the wise.” opinion cites to three additional criteria for redistrict- ing mandated by section 3-17(f) of the Charter re- FN11. The term “convenience” first ap- quired to be considered by the Commission. See id. at 328, 120 P.3d at 227. Moreover, the “administrative peared in the reply brief, not the opening convenience” argument was not presented as a dis-brief as Appellants state, and it does not ap- FN10 cernible legal argument in Appellants' briefs and, pear Appellants used the term “administra- **235 *336 hence, need not have been addressed. tive convenience.” See supra note 10. Norton v. Admin. Dir. of the Court, 80 Hawai‘i 197, 200, 908 P.2d 545, 548 (1995) (disregarding a par- The fact remains, however, that Appellants did ticular contention for lack of a “discernible argument not expressly make a “lack of good faith and hon- in support of that position, in violation of Rule esty” argument. Moreover, even if this court were to 28(b)(7) of the Hawai‘i Rules of Appellate Proce- accept Appellants' contention that such an argument dure”). was “subsumed” in its assignment of error, it would not alter this court's conclusion that “[w]hat remains FN10. At the end of their reply brief, Appel-is Appellants' conclusory statement that the ‘Com- lants stated that “[c]onvenience, not substan-mission's records do not reflect any evidence that tive law, dictated the outcome of the final justifies the [C]ommission's action to adopt a Redistricting Plan.” This statement did not [r]edistricting [p]lan that has deviations that exceed establish that the Commission was guided the ideal mean by more than 10%.’ ” Op. at 328, 120 by administrative convenience in creating P.3d at 227. Indeed, as County Appellees observe, legislative districts. Again, Appellants did the Commission's inclusion of the deviation charts in © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 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. 120 P.3d 217 Page 22 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) equal representation,” the commission also believed stitutionality of a redistricting plan pragmatically that the plan should “keep to the old district lines as acknowledges that government must, in certain cir- much as possible to avoid inconveniencing the vot-cumstances, be allowed to pursue redistricting poli- ers.”Id. at 833. The rational policy of “voter conven-cies that incidentally enhance the representational ience,” proffered by the commission in formal testi-power of some members of the electorate at the ex- mony, thus justified the plan's incremental erosion of pense of others. It was never intended to function as a equal representation. Id. curative device for excusing, after the fact, a reappor- tionment authority's gross computational errors or inadvertent methodological mistakes-especially Riley accordingly stands for the far from novel where, as here, those missteps were solely responsi- proposition that, where a redistricting plan's total ble for tainting the redistricting plan with the pre- population deviation exceeds 10 percent, the redis- sumption of unconstitutionality. tricting authority must step forward and articulate some rational justification for the deviation. See Voinovich v. Quilter, 507 U.S. 146, 161, 113 S.Ct. The right of equal representation is far too hard- 1149, 122 L.Ed.2d 500 (1993).Riley does not address won a liberty for its erosion to be justified so blithely. the far different factual situation at issue here, where Accordingly, I must dissent. a redistricting authority, in mistaken reliance on an inaccurate population count, formulates a redistrict- Hawai‘i,2005. ing plan that was never intended to be presumptively Citizens for Equitable and Responsible Government unconstitutional. Neither Riley, nor for that matter, v.County of Hawaii any of the other cases cited by the majority, endorses 108 Hawai'i 318, 120 P.3d 217 the majority's contention that a presumptively uncon- stitutional redistricting plan may be “rationalized” END OF DOCUMENT 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 conten- tion 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, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983). Nonetheless, because “[m]athematical exactness or precision is hardly a workable constitutional requirement,” Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the fourteenth amendment tolerates a **237 *338 limited degree of divergence “from a strict population standard,” provided that the plan as a whole is “based on legitimate considerations inci- dent 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 con- © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.