*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
Electronically Filed
Supreme Court
SCPW-11-0000741
06-JAN-2012
03:24 PM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
NO. SCPW-11-0000732
MALAMA SOLOMON, STATE SENATOR, 1ST SENATORIAL DISTRICT;
LOUIS HAO; PATRICIA A. COOK; and STEVEN G. PAVAO,
Petitioners,
vs.
NEIL ABERCROMBIE, GOVERNOR, STATE OF HAWAI#I;
SCOTT NAGO, CHIEF ELECTION OFFICER, STATE OF HAWAI#I;
STATE OF HAWAI#I 2011 REAPPORTIONMENT COMMISSION;
VICTORIA MARKS; LORRIE LEE STONE; ANTHONY TAKITANI;
CALVERT CHIPCHASE IV; ELIZABETH MOORE; CLARICE Y. HASHIMOTO;
HAROLD S. MASUMOTO; DYLAN NONAKA; and TERRY E. THOMASON,
Respondents.
-----------------------------------------------------------------
NO. SCPW-11-0000741
MICHAEL J. MATSUKAWA, Petitioner,
vs.
STATE OF HAWAI#I 2011 REAPPORTIONMENT COMMISSION; and
SCOTT NAGO, CHIEF ELECTION OFFICER, STATE OF HAWAI#I,
Respondents.
NOS. SCPW-11-0000732 and SCPW-11-0000741
ORIGINAL PROCEEDING
JANUARY 6, 2012
Recktenwald, C.J., Nakayama, Acoba, Duffy, and McKenna, JJ.
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
Per Curiam. In these related original proceedings, the
petitioners petitioned this court pursuant to the Hawai#i
Constitution, article IV, section 10, quoted infra, for: (1) a
judgment invalidating the 2011 Final Reapportionment Plan for the
state legislature adopted and filed on September 26, 2011 by the
State of Hawai#i 2011 Reapportionment Commission; (2) a writ of
mandamus directing the Reapportionment Commission to prepare and
file a new reapportionment plan for the state legislature; and
(3) a writ of mandamus directing the Chief Election Officer to
rescind the publication of the 2011 Final Reapportionment Plan.
On January 4, 2012, we issued orders granting the
petitions. We concluded that the 2011 Final Reapportionment Plan
is constitutionally invalid because: (1) the Hawai#i
Constitution, article IV, section 4, expressly mandates that only
permanent residents be counted in the population base for the
purpose of reapportionment and (2) the 2011 Final Reapportionment
Plan disregards this constitutional mandate by including non-
permanent residents in the population base that the
Reapportionment Commission used to allocate the members of the
state legislature among the basic island units. We invalidated
the 2011 Final Reapportionment Plan and directed the
Reapportionment Commission to prepare and file a new
reapportionment plan that: (1) allocates the members of the state
legislature among the basic island units by using a permanent
resident population base, and then (2) apportions the members
2
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
among the districts therein as provided by article IV, section 6.
We further directed the Chief Election Officer to rescind the
publication of the 2011 Final Reapportionment Plan for the state
legislature.
I. BACKGROUND
A.
The Hawai#i Constitution, article IV (Reapportionment),
requires, every tenth year after 1981, reapportionment for the
state legislature and congressional districts. Reapportionment
is effected by a reapportionment plan filed by a nine-member
reapportionment commission constituted in the reapportionment
year.
Article IV, as originally enacted in 1978, provided for
reapportionment of the state legislature by requiring allocation
-- among the four basic island units of the 25 senatorial
districts and the 51 house of representative districts -- "on the
basis of the number of voters registered in the last preceding
general election." Though the registered voter basis was upheld
as constitutional by the United States Supreme Court because it
approximated a plan based on a permissible population base,1 the
1991 Reapportionment Commission concluded, after analyzing its
data, that use of the voter registration basis would not result
in a constitutionally permissible apportionment plan. It
1
Burns v. Richardson, 384 U.S. 73, 96 (1966)
3
selected, as an alternative apportionment base, the permanent
resident population, identified as the total population derived
from the 1990 census, less transients. It hired a research firm
to "determine which transients were counted in the census, how
many there were and whether or not they could be located in
specific census blocks." The research firm, upon consultation,
reported to the 1991 Reapportionment Commission that "the
nonresident military is the only large, census-block-identifiable
group of nonresidents included in the census" and that "other
groups, such as nonresident students, are statistically
insignificant and cannot be easily placed in specific census
blocks." The 1991 Reapportionment Commission thereupon decided
to exclude, from the permanent resident population base,
nonresident military personnel and their dependents as
constituting "the vast majority of transients included in the
census counts." It stated, in its final reapportionment plan,
that "exclusion of nonresident military from the census data will
come as close as possible to the desired permanent resident base
for legislative reapportionment" because: (1) nonresident
military then constituted about 114,000 or 14% of Hawaii's
population; (2) most military personnel considered Hawai#i a
temporary home and only 3% opted to become Hawai#i citizens; and
(3) 98% of military dependents claimed the same residency as the
military member of the family.
4
The 1991 Reapportionment Commission's final
reapportionment plan was the basis, in the 1992 legislative
session, for House Bill 2327 to amend article IV of the Hawai#i
Constitution to change the state legislature apportionment base
from registered voters to permanent resident population "based on
the 1991 Reapportionment Commission's Final Reapportionment Plan"
and "the reasons set forth in [the] Plan." House Bill 2327 was
enacted by the 1992 legislature and article IV of the Hawai#i
Constitution was amended by Hawai#i voters in 1992 to its present
form.
ARTICLE IV
REAPPORTIONMENT
. . . .
APPORTIONMENT AMONG BASIC ISLAND UNITS
Section 4. The [reapportionment]
commission shall allocate the total number of
members of each house of the state legislature
being reapportioned among the four basic island
units, namely: (1) the island of Hawaii, (2) the
islands of Maui, Lanai, Molokai and Kahoolawe,
(3) the island of Oahu and all other islands not
specifically enumerated, and (4) the islands of
Kauai and Niihau, using the total number of
permanent residents in each of the basic island
units and computed by the method known as the
method of equal proportions; except that no basic
island unit shall receive less than one member in
each house.
. . . .
APPORTIONMENT WITHIN BASIC ISLAND UNITS
Section 6. Upon the determination of the
total number of members of each house of the
state legislature to which each basic island unit
is entitled, the commission shall apportion the
members among the districts therein and shall
redraw district lines where necessary in such
manner that for each house the average number of
permanent residents per member in each district
is as nearly equal to the average for the basic
island unit as practicable.
5
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
The apportionment provisions of article IV, sections 4 and 6 are
incorporated in the reapportionment statute, HRS Chapter 25,
which provides that the reapportionment commission "shall
reapportion the members of each house of the legislature on the
basis, method, and criteria prescribed by the Constitution of the
United States and article IV of the Hawaii Constitution." HRS §
25-2(a) (2009).
The reapportionment commission, within 150 days from
the date that its members are certified, "shall file with the
chief election officer a reapportionment plan for the state
legislature . . . which shall become law after publication as
provided by law." Article IV, section 2; HRS § 25-2(a). "Within
fourteen days after the filing of the final reapportionment plan,
the chief election officer shall cause public notice to be given
of the final legislative reapportionment plan which, upon public
notice, shall become effective as of the date of filing and
govern the election of members of the next five succeeding
legislatures." HRS § 25-2(a). "In the event of a successful
court challenge of a reapportionment plan, the reapportionment
commission shall continue in operation and may assist the court
in formulating a new reapportionment plan." HRS § 25-9 (2009).
B.
2011 being a reapportionment year, the State of Hawai#i
2011 Reapportionment Commission ("the Commission") was certified
6
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
on April 29, 20112 and tasked with adopting and filing a final
reapportionment plan by September 26, 2011.
The Commission, at its initial organizational
meetings, adopted "Standards and Criteria" that it would follow
for the 2011 reapportionment of the congressional and state
legislative districts. The "Standards and Criteria" for the
state legislative districts stated:
Standards and criteria that shall be followed:
The population base used shall be the "permanent
resident" population of the State of Hawaii. The
permanent resident population is the total
population of the State of Hawaii as shown in the
last U.S. census less the following: non-resident
students and non-resident military sponsors.
At meetings on May 11 and 24, 2011, the Commission was
briefed on Hawaii's population growth since the 2001
reapportionment, the history of Hawaii's reapportionment, and the
constitutional and statutory provisions governing
reapportionment. It was provided with data from the 2010 Census
showing a 12% increase in the state's total population consisting
of increases of 24% in Hawai#i County, 21% in Maui County, 15% in
Kauai County, and 9% in Oahu County. It was informed of article
IV, section 4 and 6's permanent resident basis for apportioning
the state legislature and informed -- by counsel to the 2001
2
The Commission members are Victoria Marks, Chairperson, Calvert
Chipchase IV, Clarice Hashimoto, Harold Masumoto, Elizabeth Moore,
Dylan Nonaka, Lorrie Lee Stone, Anthony Takitani and Terry Thomason.
Marks was appointed by this court as the ninth member and Chairperson
on April 29, 2011, pursuant to article IV, section 2, after the eight
Commission members were unable to select the ninth member.
7
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
Reapportionment Commission -- that the 2001 Commission computed
the permanent residence base by excluding nonresident military
personnel and their dependents, and nonresident college students.
It was informed by Commission staff that data on Hawaii's
nonresident military population had been requested from the
Defense Manpower Data Center (DMDC) through the U.S. Pacific
Command (USPACOM) and that Hawaii's nonresident student
population would be identified by their local addresses and
assigned to specific census blocks. The Commission, at the
conclusion of the May meetings, solicited advice from the
apportionment advisory councils3 as to whether nonresident
military and nonresident students should be excluded from the
permanent resident base.
The Maui and Kauai advisory councils recommended, at
the Commission's June 9, 2011 meeting, to exclude nonresident
military and nonresident students.4 Commissioner Takitani
thereupon asked Commission staff whether the current
apportionment of the state legislature would change if
apportionment were computed on the total resident population,
3
HRS § 25-7 (2009) (apportionment advisory councils) ( "The
apportionment advisory councils for the respective basic island units
shall be constituted at the same time as the reapportionment
commission[.] Each advisory council shall serve in an advisory
capacity to the reapportionment commission as to matters affecting its
basic island unit.").
4
The Hawaii advisory council later recommended exclusion only of
nonresident military. The Oahu advisory council's recommendation is
not reflected in the Commission's proceedings.
8
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
without exclusion of nonresidents. Commission staff indicated
that there would be no change in apportionment without exclusion
of nonresidents, but that Oahu County's senate seats would be
reduced from 18 to 17 and Hawai#i County's senate seats would be
increased from 3 to 4 with an extraction of nonresidents of over
20,000.
The Commission, at its June 28, 2011 meeting, voted 8-1
to apportion the state legislature by using the 2010 Census count
-- without exclusion of nonresident military and dependents and
nonresident students -- as the permanent resident base.
The Commission's June 28, 2011 decision came to the
attention of Hawai#i County legislator Robert Herkes, who
immediately sought an opinion from the Attorney General on
whether the Commission acted lawfully in deciding to include
nonresident military and dependents and nonresident students in
the permanent resident base.
The Attorney General, by letter to Herkes of July 19,
2011, opined that "the Hawai#i Supreme Court would likely hold
that to the extent they are identifiable, nonresident college
students and nonresident military members and their families
cannot properly be included in the reapportionment population
base the Commission uses to draw the legislative district lines
this year." (Original underscoring). The opinion was based on
the legislative history of the 1992 "permanent resident"
amendment to article IV, section 4, and the Hawai#i Supreme
9
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
Court's interpretation of "resident population," as used the
Hawai#i County Charter, as excluding nonresident college students
and nonresident military personnel and their dependents from the
population base for purposes of apportioning county council
districts.5 The opinion was forwarded to the Commission.
The Commission, at its August 17, 2011 meeting, was
provided by Commission staff with the following summary of data
requested and received from DMDC and USPACOM on Hawaii's non-
permanent military resident population and from Hawai#i
universities on non-permanent student resident population.
STAFF SUMMARY OF DATA SUBMITTED FROM THE MILITARY
AND UNIVERSITIES FOR USE IN THE NON-PERMANENT
POPULATION ADJUSTMENT TO THE 2010 CENSUS DATA
The 2011 reapportionment project staff
asked for non-permanent population data from the
historical data sources to accomplish its
constitutionally required population adjustment
in determining the permanent resident population.
The staff requested the military through USPACOM
to provide a data set of Active Duty personnel
and dependents who declare a state other than
Hawaii as their home state. The data was
provided segregated by U.S. Postal Zip Codes.
USPACOM provided the following counts:
Active Duty:
Declares state other than Hawaii as home state 47,082
Declares Hawaii as their home state 933
Active Duty dependents in Hawaii 58,949
We are in the process of evaluating the data to
determine where these people live. We are then
trying to place them in Group Quarters on base,
base housing on base, or off-base housing through
5
Citizens for Equit. & Resp. Gov't v. County, 108 Hawai#i 318,
120 P.3d 217 (2005).
10
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
the reported U.S. Zip Code. We are trying to
accomplish this in a reasonable and appropriate
process.
The staff requested the universities throughout
the state to provide data of students who pay out
of state tuition.
The universities provided the following counts:
Hawaii Pacific University international and
mainland students by address. Some of these
addresses are associated with military bases or
commands. 3,203
Brigham Young University Hawaii international
and non-international students by address 627
University of Hawaii System students by U.S.
Zip Codes 10,493
Chaminade University did not report.
From their website total enrollment 2,781
59% Hawaii resident 41% other than Hawaii
Commission staff provided the following explanation as to
"permanent and non-permanent military residents."
The non-permanent resident extraction model used
in 1991 and 2001 [reapportionments] relied on
receiving location specific (address or Zip Code)
residence information for the specific non-
permanent residents to be extracted.
In 2011, the data received from DMDC does not
provide residence information for military
sponsors nor does it provide specific breakdowns
of permanent and non-permanent residents by
location.
This lack of specific data from DMDC does not
allow the model used previously to be used at
this time.
Commission staff further noted that the DMDC data reported the
location of active duty military by the zip codes of their duty
stations, not their residences, and that the data did not
designate the military dependents as residents or nonresidents.
11
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
For these reasons, the Commission decided that the DMDC data did
not provide an accurate basis for determining Hawaii's non-
permanent military resident population and it decided to use data
from the 2010 Census for this purpose.
Commission staff thereafter developed its own "model"
for the "extraction of non-permanent residents" for the 2011
reapportionment. Commission staff operated on the premise that
non-permanent residents -- active duty military who declare
Hawai#i not to be their home state and their dependents, and out-
of-state university students -- were to be identified according
to the specific location of their residences within each of the
four counties. Because the 2010 Census data and the university
data did not include the residence addresses for all of the non-
permanent active duty military residents and their dependents and
the out-of-state university students, Commission staff identified
three groups of non-permanent residents: Extraction A, Extraction
B, and Extraction C. The groups were based on the level of
"certainty in determining [the residents'] non-permanency and
location." Extraction A were residents whose specific locations
were certain and included out-of-state university students with
known addresses and active duty military, with "fairly certain
non-permanent status," living in military barracks. Extraction B
included all residents in Extraction A, plus active duty military
and their dependents, with "less certain non-permanent status,"
living in on-base military housing. Extraction C included all
12
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
residents in Extraction A and Extraction B, plus out-of-state
university students with addresses identified only by zip code.
From the 2010 Census data and the university data,
Commission Staff "extracted" the following numbers of active duty
military and their dependents and out-of-state university
students for purposes of computing the permanent residence base
for the 2011 apportionment.
Extraction A Extraction B Extraction C
Oahu 15,660 Oahu 72,609 Oahu 78,524
Hawaii 793 Hawaii 796 Hawaii 921
Maui 4 Maui 4 Maui 178
Kauai 1 Kauai 143 Kauai 198
16,458 73,552 79,821
The above numbers were presented to the Commission in an
"Extraction of Non-Permanent Residents" wherein Commission staff
noted that "under Extractions B or C, Oahu receives 17 and Hawaii
receives 4 senate seats."
The Commission was scheduled to meet at its final
meeting on September 19, 2011 to adopt a final reapportionment
plan. It held a public hearing6 in Hilo on September 13, 2011
wherein attorney Stanley Roehrig testified on behalf of Hawai#i
County Senator Malama Solomon and three members of the Hawai#i
County Democratic Committee7 on the "extraction" of nonresidents
for the apportionment of senate seats. Roehrig cited to the
6
HRS § 25-2(a) ("[T]he commission shall conduct public hearings
[on legislative reapportionment]. . . . At least one public hearing
on the proposed reapportionment plan shall be held in each basic
island unit after initial public notice of the plan.").
7
Louis Hao, Patricia A. Cook and Steven G. Pavao
13
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
Commission's August 17, 2011 "Staff Summary" showing a state
population of 47,082 non-permanent active duty military
residents, 58,949 military dependents, and 15,463 out-of-state
university students. He testified that this total population of
121,494 must be "extracted" from the total resident population of
1,330,301 to compute the permanent resident base for the 2011
apportionment of senate seats and that such computation resulted
in an increase of Hawai#i County's senate seats from 3 to 4.
Senator Solomon, at the September 13, 2011 public
hearing, read into the record the following September 12, 2011
letter to the Commission from Governor Abercrombie.
I want to register my strong support for drawing
the [legislative district] lines on the basis of
residency.
The alternative of including non-residents in the
count severely distorts the actual population
shifts which have taken place across Hawaii over
the last 10 years.
In particular, the population growth on the Big
Island will literally be ignored and in effect
non-residents substituted for them in the guise
of phantom voters. The likelihood of non-
residents registering in any numbers remotely
reflecting the population changes I've cited is
highly unlikely.
Arguments have been made that formulating
districts absent a non-resident count would be
challenging. Such an observation is entirely
beside the point. One does not fail to implement
one's duty under the law because doing so
presents difficulties, logistical or otherwise.
On the contrary, our obligation is to adhere to
policies that reflect the legislative intent of
the law regardless of whatever obstacles may
appear.
14
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
In this instance my understanding is that
sufficient information exists to reasonably
account for the whereabouts of non-residents
enough so that any contention that adequate
knowledge is not available is essentially moot.
I believe the Attorney General has already
presented a preliminary view that counting non-
residents is not warranted in law and it
certainly is not the present practice. I believe
that to undermine or deny Neighbor Island
population growth for redistricting purposes is
discriminatory on its face.
Eight of the nine members of the Commission met as
scheduled on September 19, 2011 to vote on a final
reapportionment plan. Commission staff briefed the Commission on
the "extraction of non-permanent residents" presented in
Extractions A, B and C.
After briefing and discussion, it was moved by
Chairperson Marks and seconded by Commissioner Thomason that the
Commission compute the permanent resident base for the 2011
legislative apportionment by excluding, from the 2010 census
population, the 16,458 residents identified in Extraction A.
Commissioners Nonaka and Moore voted "no" as to any
exclusion of nonresidents as discriminatory. Commissioners
Thomason, Chipchase, Stone, and Hashimoto voted "yes" to
Extraction A as providing a "precise," "certain," and
"identifiable" base of non-permanent residents. Commissioner
Takitani voted "no" to Extraction A because the Commission's data
on active duty military, military dependents, and out-of-state
university students showed a non-permanent resident population of
15
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
"at least" 61,411 and "potentially" 120,360. Chairperson Marks
stated a "preference" for Extraction B of 73,552 non-permanent
residents because, according to the Commission's data, 47,082
active duty military declare Hawai#i as not their home and, "on a
numbers basis," "73,552 [Extraction B] is closer to 47,082 than
16,4[58] [Extraction A] is to 47,082." The vote for Extraction A
standing at 4 "yes" votes and 3 "no" votes, Marks -- stating that
"some extraction has to occur" and "we need a majority to have
some extraction take place" -- "reluctantly" voted "yes" for
Extraction A, even though it "didn't represent everything [she]
would like."
The Commission adopted a final reapportionment plan
that computed the permanent resident base by excluding 16,458
active duty military and out-of-state university students from
the 2010 census population of 1,330,301 and apportioned each
house of the legislature by allocating and maintaining, as to the
senate, 18 seats for Oahu County, 3 seats for Hawai#i County, 3
seats for Maui County, and 1 seat for Kauai County. The
Commission filed its 2011 Final Reapportionment Plan with Chief
Election Officer Scott Nago on September 26, 2011. Nago gave
public notice of the final reapportionment plan sometime
thereafter.
C.
On October 10, 2011, a petition challenging the 2011
Final Reapportionment Plan was filed with this court by Hawai#i
16
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
County Senator Solomon and Hawai#i County Democratic Committee
members Hao, Cook and Pavao (collectively "Solomon"). They
asserted that: (1) the concept of "permanent residents" in
article IV, section 4 was "designed to extract all, not some of
the nonresident military, [nonresident military] dependents and
nonresident students from the entire population base" for
apportionment of the state legislature; (2) the Commission was
provided by its own expert staff with "a reasonably accurate
statewide count" of approximately 121,494 nonresident military,
nonresident military dependents, and nonresident students, but
the Commission extracted from this count "only a modest portion"
of some 16,000 nonresident military and nonresident students and
"willfully refused" to follow its own Standards and Criteria
requiring extraction of nonresident students and nonresident
military from the permanent resident population base; (3) the
Commission was not required to have extraction information that
was "neighborhood specific" "to perform the article IV, section 4
statewide extraction of non-permanent residents" and it
improperly extracted nonresidents "island by island from specific
locations" rather than "off the top of the statewide census
base;" and (4) the Commission "knew that extraction in excess of
20,000 would trigger the loss of an Oahu-based senator from [a
nonresident military and nonresident student] neighborhood," "the
fear of Oahu's loss of this senate seat was the driving force for
the Commission's 5-3 vote that effectively denied Hawai#i County
17
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
a 4th senate seat," and "there can be no other rational
explanation for the Commission's action."
A second petition challenging the 2011 Final
Reapportionment Plan was filed with this court on October 11,
2011 by Hawai#i County resident Michael Matsukawa. Matsukawa had
testified at the Commission's September 14, 2011 public hearing
in Kona and had urged the Commission to abide by article IV,
section 4's requirement of apportioning the state legislature on
a permanent resident base that excluded nonresident military. He
asserted in his petition that: (1) the Commission -- by employing
Extraction A -- "removed only some of the identifiable and
locatable non-permanent residents from the population base, but
not a sufficient number so as to affect the current apportionment
of legislative seats among the state's four basic island units, a
result that could have been achieved if the Commission employed
Extraction B or Extraction C or had developed any other
methodology within a reasonable time;" (2) the Commission failed
to make an honest and good faith effort to execute its duty to
apportion the state legislature in accordance with article IV,
section 4 by using its statutory power to gather information
necessary to identify and locate non-permanent residents, but
instead "bemoaned the difficulty of its work" and acted out of
"convenience" to adopt a final reapportionment plan by the
September 26, 2011 statutory deadline; and (3) the 2011 Final
Reapportionment Plan dilutes the representational interest of
18
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
Hawai#i County in the state legislature by denying Hawai#i County
an additional seat in the senate.
Solomon's and Matsukawa's petitions both sought: (1) a
judgment invalidating the 2011 Final Reapportionment Plan for the
state legislature; (2) a writ of mandamus directing the
Commission to prepare and file a new reapportionment plan for the
state legislature, and (3) a writ of mandamus directing Chief
Election Officer Nago to rescind the publication of the 2011
Final Reapportionment Plan.
The Commission and the Chief Election Officer, as
respondents to Solomon's and Matsukawa's petitions, were directed
to answer the petitions and they answered on November 18, 2011.
They argued that the Commission "properly followed the mandate of
article IV, section 4" because the Commission determined the
total resident population of each county by "identify[ing] and
locat[ing] (by census block) the non-permanent residents to be
excluded or extracted (active duty military members living in
group quarters on base and non-resident students attending a
university in Hawaii)."
Governor Abercrombie, as respondent to Solomon's
petition, was also directed to answer the petition and he
answered on November 21, 2011. He argued that the Commission,
"by its own admission," "did not extract all of the non-resident
university students and active military personnel and their
dependents who declared themselves to be residents of other
19
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
states, from the population base it used to develop the Final
2011 Reapportionment Plan." He "agree[d] with [Solomon] that the
[Commission] did not use the correct population base to allocate
the seats of the State Senate (and the State House) under article
IV, section 4 and that the Commission must be compelled to
correct this error and prepare a revised Final Reapportionment
Plan."
On January 4, 2012, we heard oral argument on Solomon's
and Matsukawa's petitions. That day, we issued orders granting
the petitions. We concluded that the 2011 Final Reapportionment
Plan is constitutionally invalid because it includes non-
permanent residents in the population base that the Commission
used to allocate the members of the state legislature among the
basic island units. We invalidated the 2011 Final
Reapportionment Plan and directed the Commission to prepare and
file a new reapportionment plan that: (1) allocates the members
of the state legislature among the basic island units by using a
permanent resident population base, and then (2) apportions the
members among the districts therein as provided by article IV,
section 6. We further directed the Chief Election Officer to
rescind the publication of the 2011 Final Reapportionment Plan
for the state legislature.
II. JURISDICTION
"Original jurisdiction is vested in the supreme court
of the State to be exercised on the petition of any registered
20
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
voter whereby it may compel by mandamus or otherwise, the
appropriate person or persons to perform their duty or to correct
any error made in a reapportionment plan, or it may take such
other action to effectuate the purposes of this section as it may
deem appropriate. Any such petition shall be filed within forty-
five days of the date specified for any duty or within forty-five
days after the filing of a reapportionment plan." Hawai#i
Constitution, article IV, section 10.
Petitioners Solomon, Hao, Cook and Pavao filed their
petition on October 10, 2011, fourteen days after the September
26, 2011 filing of the 2011 Final Reapportionment Plan. They
state that they are registered voters in Hawai#i County.
Petitioner Matsukawa filed his petition on October 11, 2011,
fifteen days after the September 26, 2011 filing of the 2011
Final Reapportionment Plan. He states that he is a Hawai#i
County registered voter.
Solomon's and Matsukawa's petitions are petitions by
registered voters, filed within forty-five days after the filing
of the 2011 Final Reapportionment Plan, that seek writs of
mandamus from this court compelling the Commission to correct an
error made in the 2011 Final Reapportionment Plan. We have
jurisdiction to consider the petitions under article IV, section
10.
21
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
III. DISCUSSION
The Inclusion Of Non-Permanent Residents In The
Population Base For The 2011 Reapportionment Of The
State Legislature Is An Error In The 2011 Final
Reapportionment Plan That Renders The Plan
Constitutionally Invalid.
"We have long recognized that the Hawai#i Constitution
must be construed with due regard to the intent of the framers
and the people adopting it, and the fundamental principle in
interpreting a constitutional principle is to give effect to that
intent." Save Sunset Beach Coalition v. Honolulu, 102 Hawai#i
465, 474, 78 P.3d 1, 10 (2003), quoting Convention Center Auth.
v. Anzai, 78 Hawai#i 157, 167, 890 P.2d 1197, 1207 (1995).
Article IV, sections 4 and 6 provide for apportionment
of the state legislature by using a "permanent resident" base.
This "mandate[s] that only residents having their domiciliary in
the State of Hawai#i may be counted in the population base for
the purpose of reapportioning legislative districts." Citizens
for Equit. & Resp. Gov't v. County, 108 Hawai#i at 322, 120 P.3d
at 221.
Article IV, sections 4 and 6 provide a two-step process
for apportionment of the state legislature: apportionment among
the four counties, followed by apportionment within the four
counties. Article IV, section 4 first requires the Commission to
"allocate the total number of members of each house of the state
legislature being apportioned among the four basic island units,
. . . using the total number of permanent residents in each of
22
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
the basic units and computed by the method known as the method of
equal proportions[.]" Upon such allocation, article IV, section
6 then requires the Commission to "apportion the members among
the districts therein" and "redraw district lines where necessary
in such manner that for each house the average number of
permanent residents per member of each district is as nearly
equal to the average for the basic island unit as practicable."
As explained at the constitutional convention
proceeding on apportionment of the state legislature,
"[a]pportionment [under article III, section 4, now article IV,
section 4] is the process of allocating numbers of
representatives or senators to various districts within the
State. Districting [under article III, section 4, now article
IV, section 6] is the process of making those districts. These
are quite different activities." Debates in Committee of the
Whole on THE LEGISLATURE -- Apportionment and Districting, II
Proceedings of the Constitutional Convention of Hawaii of 1968,
at 204 (1972).
Apportionment of the state legislature in 2011 required
the Commission, in step one, to allocate the 25 members of the
senate and 51 members of the house of representatives among the
four counties. The Commission was then required, in step two, to
apportion the senate and house members within county districts.
Allocation under step one required the Commission to:
(1) determine the total number of permanent residents in the
23
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
state; (2) divide the total number of permanent residents by 25
and 51 to determine the average number of permanent residents per
member of each senate and house district; and (3) divide the
total number of permanent residents in each county by the average
number of permanent residents per member of each senate and house
district. Such allocation required the Commission, as an initial
step, to determine the total number of permanent residents in the
state and in each county.
Determining the total number of permanent residents in
the state and in each county required the Commission, in step
one, to extract non-permanent military residents and non-
permanent university student residents from the state's and the
counties' 2010 Census population. Apportioning the senate and
house members among nearly equal numbers of permanent residents
required the Commission, in step two, to identify the specific
locations of non-permanent military residents and non-permanent
university student residents.
The Commission acknowledged a 2010 statewide population
of at least 62,545 out-of-state university students and active
duty military who declare Hawai#i not to be their home state.
The Commission further acknowledged a 2010 statewide population
of 58,949 military dependents, the majority of whom are
presumably the dependents of 47,082 active duty military -- out
of 48,015 active duty military -- who declare Hawai#i not to be
their home state. From these numbers, the Commission extracted,
24
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
as non-permanent residents, only 16,458 student and military
residents with identifiable residence addresses. Identification
of the residence addresses for the non-permanent residents was
necessary for apportionment of the senate and house members
within the county districts under step two, but was not necessary
for allocation of the senate and house members among the four
counties under step one.
The Commission's data identified, by zip codes, the
47,082 active duty military who declare Hawai#i not to be their
home state and the 58,949 military dependents. The data
identified 3,203 out-of-state students at Hawaii Pacific
University, 627 out-of-state students at Brigham Young
University, 1,140 out-of-state students at Chaminade University,
and 10,493 out-of-state students at the University of Hawaii (UH)
Manoa and Hilo. The UH out-of-state student population of 10,493
consists of 1,233 out-of-state students at UH-Hilo, according to
public information provided by Solomon to the Commission.
The Commission had sufficient data to determine the
non-permanent military resident populations of each of the
counties. The Commission also had data to determine -- by the
site of Hawaii's universities -- the non-permanent student
resident populations of each of the counties. As to Hawai#i
County, Solomon used the Commission's data and identified for the
Commission -- by the zip codes of the active duty military and
their dependents -- 28 active duty military and 201 military
25
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
dependents in Hawai#i County. Solomon also identified for the
Commission the 1,233 out-of-state students in Hawai#i County at
UH-Hilo. The Commission rejected Solomon's method of identifying
the non-permanent resident population of Hawai#i County and
identified and excluded only 793 residents from Hawai#i County's
permanent population.
The Commission contends that it apportioned the state
legislature in accordance with article IV, section 4 because it
excluded, from the counties' permanent resident populations, only
non-permanent residents identifiable to particular census blocks.
However, HRS § 25-2(a) requires the Commission to apportion the
state legislature on the "basis, method and criteria" prescribed
by article IV, which provides, in section 4, for apportionment
"using the total number of permanent residents in each of the
basic island units." Nothing in article IV, section 4 requires
apportionment based on the total number of permanent residents
identified by census block. The 1991 Reapportionment Commission
used census blocks to identify, count and locate non-permanent
residents, but such method of determining the permanent resident
population base was not incorporated in article IV, section 4.
The Commission's method of apportioning the state
legislature did not properly separate the step one process of
allocating the legislative members among the four counties from
the step two process of apportioning the members within county
districts. Identifying the non-permanent resident population for
26
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
step one and identifying the non-permanent resident population
for step two were separate processes. The Commission
acknowledged at oral argument that it did not differentiate the
step one process from the step two process.
The Commission's military data, university data and
census data on the state's non-permanent residents identified,
for step one, the resident counties for over 100,000 non-
permanent residents, but identified, for step two, the residence
addresses for only 16,458 non-permanent residents. The
Commission undertook its reapportionment task by focusing solely
on identification of non-permanent residents for step two and
using the results for step two to identify the non-permanent
resident population for step one. The result is a Final
Reapportionment Plan that includes -- in the population base that
the Commission used to allocate the 25 members of the senate and
51 members of the house of representatives among the basic island
units -- at least 45,996 non-permanent university student
residents and non-permanent active duty military residents, as
well as thousands of other non-permanent residents who are the
dependents of the 47,082 non-permanent active duty military
residents. The Final Reapportionment Plan disregards the express
mandate of article IV, section 4 that only permanent residents be
counted in the population base for the purpose of reapportionment
of the state legislature. The inclusion of non-permanent
residents in the population base for the 2011 reapportionment of
27
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
the state legislature is an error in the Final Reapportionment
Plan. The error renders the Final Reapportionment Plan
constitutionally invalid under article IV, section 4.
We invoke our power under article IV, section 10 to
correct the error in the Final Reapportionment Plan. The
Commission must prepare and file a new plan for the 2011
reapportionment of the state legislature. In preparing a new
plan, the Commission must first -- pursuant to article IV,
section 4 -- determine the total number of permanent residents in
the state and in each county and use those numbers to allocate
the 25 members of the senate and 51 members of the house of
representatives among the four counties. Upon such allocation,
the Commission must then -- pursuant to article IV, section 6 --
apportion the senate and house members among nearly equal numbers
of permanent residents within each of the four counties.8
Stanley H. Roehrig, /s/ Mark E. Recktenwald
Robert D.S. Kim, and
Peter Van Name Esser, /s/ Paula A. Nakayama
for petitioners Malama
Solomon, Louis Hao, /s/ Simeon R. Acoba, Jr.
Patricia A. Cook and
Steven G. Pavao /s/ James E. Duffy, Jr.
/s/ Sabrina S. McKenna
8
Apportionment under article IV, section 6 requires the
Commission to "make an honest and good faith effort to construct
districts as nearly of equal population as is practicable. . . .
[M]athematical exactness or precision [is not a] constitutional
requirement." Citizens for Equit. & Resp. Gov't v. County, 108 Hawai#i
at 325, 120 P.3d at 224 (citations omitted).
28
*** FOR PUBLICATION IN W EST'S HAW AI#I REPORTS AND PACIFIC REPORTER ***
Michael J. Matsukawa,
petitioner pro se
Russell A. Suzuki, Diane
Erickson, and Robyn B.
Chun, Deputy Attorneys
General, for respondents
Chief Election Officer
Scott Nago, State of
Hawai#i 2011 Reapportionment
Commission, Victoria Marks,
Lorrie Lee Stone, Anthony
Takitani, Calvert Chipchase IV,
Elizabeth Moore, Clarice Y.
Hashimoto, Harold S. Masumoto,
Dylan Nonaka, and Terry E.
Thomason.
Charlene M. Aina and
Harvey E. Henderson,
Deputy Attorneys General,
for respondent Governor Neil
Abercrombie
29