Citizens for Equit. & Resp. Gov't v. County, 25614.

• Court: Supreme Court of Hawai'i
• Writing for the Court: Acoba
• Citation: 108 Hawai`i 318,120 P.3d 217
• Parties: CITIZENS FOR EQUITABLE AND RESPONSIBLE GOVERNMENT, a Hawai`i nonprofit corporation; Brenda J. Ford; Stanley A. Boren; Floyd H. Lundquist; Marlene E. Lundquist; Ronald C. Phillips, Plaintiffs-Appellants and Beverly Byouk and Sandra W. Scarr, Plaintiffs-Appellees v. COUNTY OF HAWAI`i; County Clerk, County Of Hawai`i; Lloyd Van de Car, Chairman, County of Hawai`i 2001 Reapportionment Commission, Defendants-Appellees.
• Docket Number: No. 25614.,25614.
• Decision Date: 22 September 2005

Page 217

120 P.3d 217

108 Hawai`i 318

CITIZENS FOR EQUITABLE AND RESPONSIBLE GOVERNMENT, a Hawai`i nonprofit corporation; Brenda J. Ford; Stanley A. Boren; Floyd H. Lundquist; Marlene E. Lundquist; Ronald C. Phillips, Plaintiffs-Appellants and Beverly Byouk and Sandra W. Scarr, Plaintiffs-Appellees v. COUNTY OF HAWAI`i; County Clerk, County Of Hawai`i; Lloyd Van de Car, Chairman, County of Hawai`i 2001 Reapportionment Commission, Defendants-Appellees.

No. 25614.

Supreme Court of Hawai`i.

July 22, 2005.

As Corrected July 28, 2005.

As Amended on Reconsideration September 22, 2005.

Order Granting Reconsideration in Part and Denying Reconsideration in Part September 22, 2005.

Michael J. Matsukawa, on the briefs, for plaintiffs-appellants.

Patricia K. O'Toole, Deputy Corporation Counsel, County of Hawai`i, on the briefs, for defendants-appellees.

LEVINSON, ACOBA, and DUFFY, JJ.; with NAKAYAMA, J., concurring separately and dissenting, with whom MOON, C.J., joins.

Opinion of the Court by ACOBA, J.

We hold that (1) the phrase "equal resident populations" in section 3-17(f)(4) of the Charter of the County of Hawaii (the Charter) excludes nonresident college students and nonresident military personnel and their dependents from the population base for purposes of reapportioning county council districts of the County of Hawai`i, (2) a total deviation in excess of 10% in an electoral reapportionment plan presents a prima facie case of discrimination in violation of the equal protection clause of the United States Constitution, (3) a rational government policy will justify a total deviation that slightly exceeds the 10% threshold, and (4) assuming, in excluding nonresident students and nonresident military personnel and their dependents from the population base, the plan of the County of Hawaii 2001 Reapportionment Commission (the Commission) resulted in a total deviation of 10.89%, such a deviation in this unique instance (a) was minimal, (b) apparently included the Commission's consideration of other valid criteria under section 3-17 of the Charter, (c) resulted from the commission's intent to achieve inclusiveness and equal representation, and (d) was, therefore, constitutional.

I.

Pursuant to the Charter, Defendant-Appellee County of Hawai`i initiated a reapportionment of its county council districts in 2001. The Commission was appointed and confirmed in accordance with a provision in the Charter requiring that in 1991, and every tenth year thereafter, a commission be established to determine the boundaries of council districts, and to file a reapportionment plan by December 31 of those years.<sup>1</sup> A series of public meetings and hearings was held throughout Hawai`i County, during which private speakers argued that the Commission was using the wrong population base and should exclude therefrom nonresident college students and nonresident military personnel and their dependents. The Commission adopted a reapportionment plan (the Commission's plan) and filed it as required with the County Clerk. The Commission's plan provided for a total resident population base that included nonresident college students and nonresident military personnel and their dependents.

Subsequent to the filing of the Commission's plan, Plaintiffs-Appellants Citizens for Equitable and Responsible Government, Brenda J. Ford, Stanley A. Boren, Floyd H. Lundquist, Marlene E. Lundquist, Ronald C. Phillips, (collectively, Appellants) and Plaintiffs-Appellees Beverly Byouk and Sandra W. Scarr filed a Complaint and First Amended Complaint against County of Hawai`i and other Defendants-Appellees, the County Clerk, Hawai`i County and Llyod Van De Car, Chairman of the Commission (collectively, County Appellees) in the third circuit court (the court)² requesting, inter alia, a declaratory ruling that the Commission's plan was invalid.

Appellants moved for partial summary judgment on the ground the Commission used the wrong population base and that, therefore, the Commission's plan was unconstitutional because its total deviation from the ideal mean exceeded 10%. Appellants appended to their motion for summary judgment a letter dated October 25, 1989, written by Christopher J. Yuen (Yuen), the attorney representing the Commission during the drafting of the reapportionment plan, for the proposition that the Commission was advised to use the same population base as used by the State Reapportionment Commission. On June 20, 2002, County Appellees filed an affidavit by Yuen to rebut Appellants' proposition. Appellants moved to strike the affidavit.

Following a hearing, the court denied Appellants' motion and sua sponte granted partial summary judgment in favor of County Appellees. The court did not issue findings of fact or conclusions of law, but in its July 19, 2002 order stated, inter alia, as follows:

The [c]ourt finds that the adoption by the ... Commission of a resident population base which did not exclude non-resident military personnel and their dependents and did not exclude non-resident university students in the 2001 council redistricting plan was proper.

The [c]ourt also finds that there was no unconstitutional deviation in the population count in the county council districts as set forth in the 2001 council redistricting plan adopted by the ... Commission.

Following the court's ruling, the parties agreed to withdraw all remaining counts so that final judgment could be entered in the case.³ The court entered final judgment in favor of County Appellees and against Appellants on January 24, 2003. Appellants filed their notice of appeal on January 31, 2003.

II.

On appeal, Appellants maintain that the court erred in (1) refusing to strike the affidavit of the Commission's counsel, (2) concluding that the Commission could include nonresident university students and nonresident military personnel and their dependents in the population base, (3) deciding that the total deviation between county council districts in the redistricting plan did not exceed constitutional limits, and (4) ruling that the redistricting plan is valid. They request an order (1) invalidating the Commission's plan, (2) appointing a master to prepare a new redistricting plan using the correct population base, and (3) granting such other appropriate relief.

III.

"Unlike other appellate matters, in reviewing summary judgment decisions[,] an appellate court steps into the shoes of the trial court and applies the same legal standard as the trial court applied." Beamer v. Nishiki, 66 Haw. 572, 577, 670 P.2d 1264, 1270 (1983). "Summary judgment is appropriate if the pleadings, depositions, and answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law." Pac. Int'l Serv. Corp. v. Hurip, 76 Hawai`i 209, 213, 873 P.2d 88, 92 (1994). A trial court's conclusions of law are reviewed de novo under the right/wrong standard. Fujimoto v. Au, 95 Hawai`i 116, 137, 19 P.3d 699, 720 (2001). Under this standard, the trial court's conclusions of law are not binding upon the appellate court and are freely reviewable for its correctness. Id.

IV.

As to point (1), the court did not rule on Appellants' request to strike an affidavit of the Commission's attorney. Appellants assert that the affidavit of the Commission's attorney is not part of the Commission's records and contains the opinion and recollection of the attorney ten years after-the-fact. County Appellees maintain that they offered the affidavit of the Commission's attorney to clarify that the letter in Appellants' motion stated only that there was a difference in reapportionment between using residents, as opposed to registered voters, in determining the population base and that the affidavit was not introduced to reflect the intent of the charter commission.⁴ Inasmuch as the affidavit was not offered with respect to the intent of the charter commission and is not necessary to our interpretation of the phrase "resident populations," see infra, we do not address Appellants' point (1).

V.

The primary issue on appeal, Appellants' point (2), is whether nonresident college students and nonresident military personnel and their dependents should be excluded from the population base of Hawai`i County's reapportionment of city council districts. The Charter mandates that "[d]istricts shall have approximately equal resident populations as required by applicable constitutional provisions[,]" Charter § 3-17(f)(4) (emphasis added), see supra note 1, but fails to define the phrase "resident populations."

Appellants first argue that "resident populations" should be interpreted in the same manner as that term is applied in the apportionment of state representative districts, that is, by using a permanent resident population base. Appellants refer to an amendment made to Article IV of the Constitution of the State of Hawaii in 1992, when voters statewide voted to use a "permanent resident" population base for apportioning legislative districts. The amendment mandated that only residents having their domiciliary in the State of Hawai`i may be counted in the population base for the purpose of reapportioning legislative districts. Article IV of the Constitution of the State of Hawaii states in relevant part as follows:

The commission shall allocate the total number of members of each house of the state legislature being reapportioned among the four basic island units namely: (1) the island of Hawaii, (2) the islands of Maui, Lanai, Molokai and Kahoolawe, (2) the island of Oahu and all other islands not specifically enumerated, and (4) the islands of Kauai and Niihau, using the total number of permanent residents in each of the basic island units and computed by the method known as the method of equal proportions; except that no basic island unit shall receive less than one member in each house.

Haw....