NO.

IN THE SUPREME COURT OF THE STATE OF HAWAII IN THE CIRCUIT COURT OF THE THIRD CIRCUIT

STATE OF HAWAII MICHAEL
J.

MATSUKAWAr Petitionerr

vs. STATE OF HAWAI I 2011 REAPPORTIONMENT COMMISSION and SCOTT NAGO r Chief Election Officer r State of Hawaii Respondents.

MEMORANDUM

IN SUPPORT OF PETITION

TABLE OF CONTENTS

TABLE OF AUTHORITIES I. STATE OF THE CASE Introduction A. The Hawaii 1. 2. 3. B.
11

1 State Constitution Commission 2 4 5 6 Decision 6 7
•••••••••••••

The Reapportionment Population Base

Implementing

Legislation
11

Permanent

Residents

Only Original

1. 2. 3. C. D. E.

The Commission's The Attorney Removing

General Opinion

IINon-Permanent Residentsl1

9 11 14

The Reapportionment Commission's Decision to Employ Extraction Method IIA" The Petitioner Constitutional 1. 2. Hawaii Remedy

State Constitution

15 16

Time for Petition OF ISSUES AND RELIEF REQUESTED Presented for Decision

II.

STATEMENT A. B.

Questions Relief 1. 2.

17

Requested 18

As to the Final 2011 Reapportionment Plan As to the Respondent Scott Nago, Chief Election Officer, State of Hawaii
i

18

Table of Contents,

cont.

3.

As to the Respondent State of Hawaii 2011 Reapportionment Commission SHOULD BE GRANTED

'. ... ........ 19 .

III. WHY RELIEF A.

The Commission was Distracted by Past Arguments and Fears and Started Off on the Wrong Foot ' This Court Already Provided a Definition for the Term IIPermanent Residents
II

19

B.

21

C.

The Commission Ignored its Own Warehouse of Tools and its Staff's Abilities The Commission Sought to Avoid Intraisland Complexities Technological Changes After IIHickel11 Make it Possible to Identify and to Locate "Norr-Pe rmanerrt, s Lderrt s " and Re this Court Should Give the Reapportionment Commission time to Do What the Commission Should Have Done from the Beginning The Commission Did Not Make an Honest and Good Faith Effort to Execute its Constitutional Duty The Commission of Article IV Destroyed the Construct ', ,.. ,

22

D. E.

23

23

F.

25
26 26

G. H.

The Commission is Requesting Judicial Guidance and Direction from this Court "

IV.

CONCLUSION

27

ii

Table of Contents,

cont.

Request 1. 2.

for Relief As to the Final 2011 Reapportionment Plan As to the Respondent Scott Nago, Chief Election Officer, State of Hawaii As to the Respondent 2011 Reapportionment
11111

28

29 29

3.

State of Hawaii Commission

APPENDICES

TO

r1

9 If CASES

STATEMENT OF RELATED

III

TABLE OF AUTHORITIES

Primary

Sources

(Federal Cases) Burns v. Gill, 316 F. Supp ..1285 (D. Haw. 1970) 3, 26

Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 12, 86, 16 L.Ed. 2d 376 (1966) Travis v. King, 552 F. Supp. 554 , (D. Haw. 1982)

3, 4, 8, 9, 21 6

(State Cases) Barnett v. Broderick, 13.59 (1996) 84 Haw. 109, 929 P.2d

18

Blair v. Ariyoshi, 55 Haw. 85, 515 P.2d 1253 (1973), cert. denied, 416 U.S. 945, 94 S.Ct. 1954, 40 L.Ed.2d 297 (1974 Citizens for Equitable and Responsible Government v. County of Hawaii, 108 Haw. 218, 120 P.3d 217 (2005) Hanabusa v. Lingle, 604 (2008) Harris v. Cooper, 119 Haw. 341, 198 P.3d

1, 3

7, 21, 25

18 18 18

14 Haw. 145

(1902)

Kumulae v. Kalauokalani,

25 Haw. 1 (1919)

i

Table of .Authorities, cont.

(Other Cases) Hickel v. Southeast (Alaska 1992) Conference, 846 P.2d 38

23

Legislative

Sources

Hawaii

State Constitution IV 1 2 ...........................
__ . . . . .. 4,

Article

Section Section

19, 29 12, 18

Section 4 Section Section 6 10

· .· .· .

.

· 2, 4

I

5,

6, 19, 25, 29 19, 25, 29

-

. . · _2,

4,

5, 6,

·

. . . . 15, 16

Hawaii Revised

Statutes
· · 5 4

Section 25-1 Section 25-2 Section 25-2 (a) Section 25-3 Section 25-4 Section 25-9

4, 5, 18 13, 21 13 5, 19, 29

11

Table of Authoritiesr

cont.

Hawaii Revised Section Section Section

Statutes,

cont. 16 16 16

602~5 (a) (4) 602~5 (a) (6) 602~5 (a) (7)

Secondary A. Leer The Hawaii

Sources (1993) 2

State Constitution

111

I.

STATEMENT OF THE CASE Introduction In County of this case, asks Petitioner this Court (a registered to exercise voter in the

Hawaii)

its

supervisory Commission for fair

authority

over the State of Hawaii 2011 Reapportionment

in order to protect his constitutional and equal representation in the

right and privilege Legislature.

State

Petitioner Commission hereafter)

contends

that the State of Hawaii Commission" his

2011 Reapportionment or the "Commission" interest

(the "Reapportionment deliberately Legislature execute its diluted when the

representational

in the State voted it not felt to the to

Reapportionment duty

Commission because

constitutional

either

applicable perform

law should be changed or because to perform.
1

it is too difficult

the work it is charged

1/1 //1 //1
//1 III

//1

Petitioner notes that this case is similar to Blair v. Arivoshi, 55 Haw. 85, 515 P.2d 1253 (1973), cert. denied, 416 U.S. 945, 94 S.Ct. 1954, 40 L.Ed.2d 297 (1974) dealing with the apportionment of legislative seats in the state house AMONG Ilbasic island units." The State Chief Election Officer maintains material relating to the Reapportionment Commission's activities at http://hawaii.gov/elections/reapportionment/.

The Legal Background A. THE HAWAII 1. STATE CONSTITUTION2 Commission State Constitution, First
1

The Reapportionment

Under Article Reapportionment apportion

IV of the Hawaii

the

Commission

has a two-.fold duty. of members

it must

the total number

of each house

of the State
rr

Legislature

among the st.at.e' four "basic island units. s the legislative

Second,

after so apportioning T!basicisland units to specific and, further
l
1

seats among the state/s four

T!it must then assign the members of each house districts WITHIN district each T!basic island unitT! boundary lines for each

legislative redraw

legislative

house if necessary.3

2 A brief constitutional history on the apportionment of the State Legislature appears in A. Lee, The Hawaii State Constitution 11-15 97-105 (1993). (Appendix 3)
1

3 Section 4. 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 Kahoo Iawe , (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. (emphasis added) (Appendix 1)
1 1

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 errt i.t.Led , 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 (emphas is added) (Appendix 1)
2

The goal is to achieve statewide interisland proportional representation AMONG island groupings4 representation and at the same time intraIn

island proportional the present tionment

WITHIN each island grouping. involves

case, Petitioner's

main concern

the Reapporof
II

Commission's seats between AMONG the

first-tier the OAHU in

interisland four

apportionment island

legislative (primarily However,

state's and

"basic

units
ll

HAWAII has

"ba si.o island implications

units ).5 as to the

any

decision intraisland the

this

case

Commission's house WITHIN Page 15.)

districting
ll

of legislative as well.

seatB for each 4,

"basic island units

(See Appendix

The final legislative when the Reapportionment Chief Election

reapportionment

plan takes effect

Commission

files its plan with the State Officer

Officer6 and after the State Chief Election

4 In Burns v. Gill, 316 F. Supp. 1285, 1288-1293 (D. Haw. 1970), the federal court explained Hawaii's history in using "bae i c island un i t s " to apportion legislative seats and found that method to be constitutional in context of Hawaii's unique island setting. This effort followed Hawaii's earlier reapportionment experience that is described in Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286 16 L. Ed .2d 376 (19 66) .
I

Compare with Blair v. Ariyoshi, footnote 1, supra (dispute over the apportionment of a third house seat to the KAUAr f'basicisland un i t " in order to equalize its underrepresentation .in the senate, to the loss of a house seat on the part of the OAHU "basic island urri " ) . t
6 In this case, the State of Hawaii 2011 Reapportionment Commission filed what it characterizes to be its final legislative reapportionment plan with the State Chief Election Officer on September 26, 2011.

5

3

9ives

public

notice

of

that

plan

within

14

day.s thereafter.

7

(Appendices 1 and 2) 2. The reapportionment of the Hawaii base for Population population decisions State Base base is the key number upon which all

are made.

Article

IV, Sections limit

4 and 6

Constitution seats of the in

expressly the State at

the population to the

reapportioning residents"

Legislature the

°permanent (interisland districting)

state, and 3,

both

first-tier (intraisland 1) Past

apportionment) levels.

second-tier supra; Appendix

(Footnote

reapportionment and 2001 without United States

commissions judicial

have implemented

this formula in 1991 sanction State and from the Federal

challenges of Justice

and without or from

Department

cour t s ."
7 Section 2. ... Not more than one hundred fifty days from the date on which its members are certified, the commission shall file with the chief election officer a reapportionment plan for the state legislature which shall become law after publication as provided by law HAW. ST. CONST. art. IV, §2 (Appendix 1)

§25-2. Duties. (a) Within fourteen days after 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. Section 25-2, HRS (Appendix 2)

Forty-five years ago, in Burns v. Richardson, supra, 384 U.S. at 94-95, 86 S.Ct. at 1297-1298, the United States Supreme Court recognized that adjustments to the census count (reducing the total census count to a different figure for reapportionment purposes) is a legitimate exercise of a state's authority. Specifically, the court held that 1!This court finds no scheme in Hawaii's Constitution or in the statutes implementing the exercise
4

8

3.

Implementing

Legislation 25-2(a), HRS, the State Legislature Commission to

In enacting instructed members
II

Section

of the Reapportionment

reapportion the members of each house of the legislature on the basis, method, and criteria prescribed 12Y . - . Article IV of the Hawaii Constitution. n (emphasis added) (Appendix 2) The nbasis, method and criterian "permanent residents" population base set referred forth to include the in Article IV,

Sections 4 and 6 of the Hawaii In Sections anticipated challenges 25-1

State Constitution. the State Legislature that

and 25-9, HRS,

to a reapportionment

plan and provided

commissioners seats

will hold office until a general election in plan the Commission's
2) .

is held for legislative

described

final The

reapportionment Commission's

(Appendix

Reapportionment plan takes effect

final

legislative

reapportionment

when the State's Chief Election plan. Section 25-2(a), HRS.

Officer gives public notice of the In this case, the Commission filed

what it characterizes State Chief Election

to be its final reapportionment Officer on September 26, 2011.

plan with the

of franchise which is aimed at disenfranchising the military or any other group of citizens. No issue was raised in the proceedings before it [the lower court] that military men had been excluded improperly from the apportionment base." Noting the presence of large numbers of military in Hawaii as a result of Hawaii's role as the Pacific staging area for military purposes, the court continued that IIIftotal population were to be the only acceptable criterion upon which legislative representation could be based, in Hawaii, gross absurd and disastrous results would flow." Id.
5

The Population
B. npERMANENT RESIDENTS" ONLY

Base

As Sections population residents
II

stated

above,

Hawai i's voters State

adopted

Article to limit

IV, the

4 and base

6 of the Hawaii for

Constitution purposes to

reapportionment Since

the

II

permanent has

of the state. against

1991, no judicial

challenge

ever been brought population

the use of "permanent

residents"

as the

base to reapportion 1. The Commission's

the State Legislature.9 Original Decision Commission of Article started its IV and to

In June 2011, the Reapportionment work by voting 8-1 to ignore instead, the provisions refusing

use total population mandated

to use the constitutionally base. (See Minutes of

Ilpermanent residents IIpopulation

June 28, 2011 Meeting, The Commission's to follow Article

Pages 11-22, Part Vi Appendix show how the Commission

5-A, Page 22) refused

minutes

outright

IV and refused to apply that term in its work on can, if it chose to do so, IIewrite r on its own. instead
rr

the belief that the Commission Article IV of the Hawaii

State Constitution

In support of the motion to use total population of the constitutionally base, the movant stated: mandated IIpermanent residentsTl

population

[J] ust because they [the 1991 and 2001 Commissions] didn't do it in the past [use the total census count as

9 The IIpermanent residents population base differs from the "registered voters populat ion base discussed in Travis v. King 552 F _ Supp. 554 (D. Haw. 1982).
II II I

6

the population base], that doesn't mean it shouldn't be done differently in the future. I think in a lot of ways it was probably a wrong decision and I think this may be chance for us to, to right a wrong. (Appendix 5-A, Page 13 (emphasis added) In response said to which the lone dissenting had it right commissioner

"I think the prior

Commissions

for the last 50 v.

years, Big

I think the Supreme [sic] case i I

Court had it right think the

in the Citizens island

Island

neighbor

Advisory (Id.,

councils

had it right

in their

recommendations Council

as well."

Pages 20-21)
4 -A)

(See also Maui Advisory

testimony,

Appendix

In effect,

the Commission

(eight of whose

nine members the current state's four

live in the OAHU "basi.cisland unit II) acted to maintain apportionment of senate
11

and

house

seats

AMONG

the

l1basic island units. 2.

The Attorney

General

Opinion General expressed and

On July his opinion

19, 2011, the State Attorney of the term

on the meaning

I1permanent residentsll

how the Reapportionment work. The Attorney

Commission

should implement is directed

the same in its to Rep. Robert (Appendix 4) In

General's

letter

Herkes and was also submitted this letter, the Attorney Court's 2005 opinion

to the Commission. referred

General

the Commission and

to this

in Citizens of Hawaii,

for Equitable

Responsible (2005)

Government

v. County

108 Haw. 318, 120 P.3d 217 it has no discretion

and reminded this Court's

the Commission interpretation

that

to ignore

of the term "residentl1:
7

The term "permanent residentl1 is not defined in the State Constitution. However, a recent ruling by the Hawaii Supreme Court is instructive in this regard. In Citizens for Equitable and Responsible Government v. County of Hawaii, et al., 108 Haw. 318, 129 P.3d 217 (2005), the Hawaii Supreme Court interpreted the term IIresident population" as that term is used in the Hawaii County Charter to decide whether military personnel and college students were properly included in the population base for reapportioning its county council. Relying on Black's Law Dictionary, the court state that the common def ini tion of the word resident is:
II II

[a]ny person who occupies a dwelling wi thin the State ( has a present intent to remain within the State for a period of time, and manifests the genuineness of that intent by establishing an ongoing physical presence wi thin the State together with indicia that his presence within the State is something other than merely transitory in nature. The court then observed that generally speaking, lithe transitory nature of military personnel from outside [the State] is apparent because military personnel are temporarily stationed in Hawaii, have little say in the location of their assignments, are present in Hawaii involuntarily, and "seemingly lack a present intent to remain in the county. II (emphasis in original)
II

To the extent that the Commission Federal law overrides that
J!

may have believed General's

that

Article

IV, the Attorney

letter

continued

[W]e know of no federal

constitutional

provision or of

that requires military

states to consider active duty military as 'permanent residents' for

personnel purpose

dependents

reapportionment, state's

or to include or exclude population U.S. at 92,

them as a group

from a v.

reapportionment supra, 384

base, II citing 86 S.Ct .. at

Burns

Richardson,

1296-1297.

(emphasis added)

8

3. As Richardson,

Removing the United the

"Non-Permanent States removal

Residents Court

ll

Supreme of

held

an

Burns from

v. the

supra,

certain

individuals exercise

census count is a valid and constitutional the state, something in order to achieve

on the part of do

that the State of Hawaii may legitimately proportional as to stated representation above, its the an the

State

Legislature. Commission

However, openly refused

Reapportionment duty

discharge

constitutional

under Article not "permanent

IV and used total population residents" as the population

(the census count) and base. of the September Commission's mandated population Staff goal.

On August 26, 2011 plan staff reminded task is
II

17, 2011

(40 days in advance

filing

deadline),

the Reapportionment

the Commission the

that its constitutionally required

to accomplish

constitutionally resident to

adjustment then

in determining its most

permanent current

population." achieve 1) is that

explained

efforts

(Appendix 5-B, Staff Summary attached, What Reapportionment faith and is very apparent from

Paragraph the

record

that

the

Commission action

knowingly on the

refused to take serious, good presented and thereby to

honest

question

denied itself, and more importantly obtain all available mandated task.

the public,

the opportunity

data and means to perform its constitutionally in the minutes

The effect of the delay is reflected August 2011 17, 2011 meeting plan filing

of the Commission's the September 26,

(about one month before when its staff

deadline)

reported as follows:
9

Mr. Jones stated other techniques possibly be used if there were more time and (Appendix 5-B, Page 5 (emphasis added)
II

could data."

On September after the Commission's

13, 14 and

19, 2011,

nearly

three months the September staff again

June 28, 2011 vote

and with

26, 2011 plan filing deadline looming, the Commission's informed the Commission identifiable census count, and explained apportionment island units." that it had the ability "non-permanent

to remove certain from the 2010 methods
1

and locatable using

residents"

at least three available

extraction

the results

that would follow as to the interisland seats AMONG the state's Paragraph four lIbasic

of legislative (Declaration

of Petitioner,

6; Appendix

5-D, Staff Report) The Commission1s staff report appears in the following 6; Appendix

power point slide (Declaration of Petitioner, 5-D, Staff Report) : Extraction of Non-Permanent A: Residents

Paragraph

EXTRACTION -Oahu -Hawaii -Maui -Kauai EXTRACTION -Oahu* -Hawaii* -Maui -Kauai

extraction -15,660 -793 -4 -1

adjusted 937,547 184,286 154,920
67 090
1

total

B:
-72,609 -796 -4 -143 808,598 184,283 154,920 66,948

10

EXTRACTION -Oahu* -Hawaii* -Maui -Kauai

C: -78,524 -921 -178 -198 874,683 184,158 154,746 66,893

* Under Extractions B or C, Oahu receives 17 and Hawaii receives 4 senate seats. (Appendix 5-D) The Commission's
C.

Action
DECISION TO EMPLOY

THE REAPPORTIONMENT COMMISSION'S EXTRACTION METHOD "A"

On September filing deadline re-examined

19, 2011, with the September

26, 2011 plan Commission

only one week away, the Reapportionment

its prior June 2011 vote10 and then voted 5-3 to remove count, employing This 5-3
"riori-

15,660 IInon-permanent residentslT from the census Extraction vote Method only
ll

IIA. IT (Appendix 5-C, Minutes, some of the identifiable base

Page 23)

removed

and

locatable

permanent sufficient

residents number

from the population so as to affect the state's been the four

(-15,660), but not a apportionment of

current

legislative result that

seats AMONG could had have

lIbasic island units, ITa if the
"B"

achieved

Reapportionment (-72,609) any or

Commission Extraction methodology not do).

employed

Extraction or

Method had

Method

liCIT (-78,524) time

developed

other

in a reasonable

(which it could have done but did

10 In its prior action, the Reapportionment Commission had voted 8-1 to include "non-permanent residents," i.e., to use the total census count, as the population base, Article IV's "permanent residents" requirement notwithstanding.

11

The minutes of the September 19, 2011 meeting demonstrate the Commission's disingenuous behavior.
11

Although

the Reapporin April-May determine

tionment Commission 2011 ample time to

had from the date of its inception instruct its staff to

immediately

methods to identify and to Iocate the Hpermanent state census the (i.e., count}r to remove the
"rion+pe'rrnarierit;

residentSIl of the the

.re i derit.e from s "

the Commission and to begin

instead the

instructed

its staff to do and

opposite

technical

apportionment

districting The minutes

work with total population

as the base from the start. believed that citizens

further show how the Commission
r

must accede to the Commission Hawaii State Constitution. Thenr Reapportionment of population
26r

s seIf -appointed power to rewrite the

in

response

to

intense

public

criticismr
11

the

Commission

purported

to lIre-examine

the question the September and district drawn. more

baser but with

only days left before and with apportionment as the base that

2011 plan filing deadline that use total

maps

population bemoaned

already

Whereupon,

the Commission

the fact

it needed

data or better information itself from the beginning constitutional Constitution) . duty and

that the Commission (when it had refused tried to rewrite

had actually denied to acknowledge the Hawaii its

State

This Court should note that the staff works at the Comrn ssi.ori direction. i 's "The chief election officer ... under the direction of the commission, shall furnish all technical services. II HAW. ST. CONST. art. IVr §2. (Appendix I) 12

11

Confronted line,

by the September conceded (Appendix that

26, 2011 plan lithe term

filing deadhadn't 2) The

one commissioner
II

permanent

been fully explored. availability explored"

5-C, Page 18, Paragraph methodology had not

of data or statistical the Commission

had not "been fully its staff to

because

directed

obtain all available possible

data and to develop a methodology

as soon as

from the start. The Commission at all times had specific powers to compel (experts, military commanders, but the

the

attendance

of

witnesses

university record

personnel) that

and the production Commission did

of information, not use this

shows

the

authority,

choosing instead to bemoan the difficulty to properly manage the reapportionment

of their work rather than

process.12 fact -- that the

This Court cannot ignore this important Reapportionment available to Commission the

did not use all of the tools that were to execute its constitutional duty

Commission

12 The commission may require all such persons as it deems necessary to appear personally and testify before it and to produce to it all books, records, filest papers, maps and documents as shall appear to be necessary for the purpose of formulating a reapportionment plan. [p] ersons may be questioned, under oath, concerning all matters necessary for the due execution of the duties vested in the commission by the Constitution and by this chapter. Section 25-3, HRS.

Any person who, having been summoned under section 25-3 to give testimony or to produce any books, records, files, papers, maps and documents, wilfully makes default, or who, having appeared, refuses to answer any questions or wilfully gives false evidence shall be fined not more than $1,000, or imprisoned not more than twelve months or both. Section 25-4, HRS. 13

because tools. i ty to

the

Commission

had

voted did not

at do

the (not
II

start use

not its

to lawful

use

those

What the determine as what

Commission the the

authoris . as

"pe rrnane.nt; residents Commission 26, final describes 2011, did the do

population total

base) population)

important

(use

On September adopted is the based state, and filed its it

Reapportionment reapportionment the IIpermanent the effect seat and

Commission plan residents "Fd na.l is to that II of 2011 deny

legislative to be

on what using

Extraction P'l an " hereafter). unit

Method

IIAII (called the

Reapportionment the tion another

As stated,

HAWAII "ba s i.c island of Petitioner, house seat

II one additional 11 i Appendix 15).

senate 5 -D)

(Declarapossibly

Paragraph (Appendix 4-A,

Page

The Petitioner

D.

THE PETITIONER
Petitioner resides in that In the island HAWAII IIbasic unit. 14, island unit
ll

and the of of is

is

registered

to

vote

He testified 2011 on the

before subject

Reapportionment the
II

Commission residents 1,
II

on September population

permanent

base. 6)

(Declaration His complaint apportionment

Petitioner, obvious. action residents Extraction or any other to
II

Paragraphs

2 and

3; Appendix

The Reapportionment exclude using Method only some,

Commission's but not all,
IIAII

first-tier of the

"rion -pe.rmanent;

Extraction IIBII (-72,609) denies the

Method

(-15,660) Method

rather

than

or Extraction

IICII (-78,524), unit
II

method,

HAWAII "ba s i c island

in which

14

he and other Hawaii Island residents the state senate (and possibly argues reason,

live an additional house seat) . Reapportionment

one seat in

another the

Petitioner offers no compelling

that

Commission explanaaction or

no analysis,

no substantive

tion and no articulated to otherwise demonstrate

reason to support its collective that the Commission
II

took a llhard look" at to execute As a

the issue and made an "honest its constitutional result, Petitioner

and "good faith" effort

duty under the Hawaii State Constitution. complains that the Reapportionment

Commission as well States

violated his interests under the Hawaii State Constitution as under the Equal Protection Clause of the United

Constitution.

Remedy E. CONSTITUTIONAL 1. Hawaii REMEDY

State Constitution IV, Section 10 of the Hawaii State Consti-

Under Article tution, an aggrieved

person may pursue a broad array of remedies to Commission's errors. The remedies are This Court

correct the Reapportionment

inherently broad and unlimited can appoint a master,

in scope and character. the Commission,

can instruct

can establish any other

the 2011 reapportionment tool it deems necessary

plan by itself and can employ to protect Petitioner's

interest and in aid

15

of this Court's

jurisdiction.

13

Original jurisdiction is vested in the supreme court of the State to be exercised on the petition of any registered 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. (emphasis added) (Appendix 1) Sections powers complete upon this
602-5

(a) (4), to

(6)

and (7), an

HRS also confer broad person full and

Court

give

aggrieved

relief as the circumstances
2.

may warrant .. (Appendix 2)

Time for Petition Article IV, Section 10 of the Hawaii State for a

Under Constitution, relief

a registered

voter must file his or her petition days after that the filing of

rlwithin

forty-five plan. 26,
n

reapportionment after September

A petition 2011 (the

is filed within the

45 days

date

when

Reapportionment

Commission
lS

filed its final 2011 Reapportionment filed petition.

Plan in this case)

a timely

III III III III
13 For example, this Court can command the Reapportionment Commission to publish findings, can take "liven testimony from witnesses and can hold evidentiary hearings en banco

16

STATEMENT
A. QUESTIONS

II. OF ISSUES AND RELIEF REQUESTED
FOR DECISION

PRESENTED

1.

Question One:

WHO ARE THE "PERMANENT RESIDENTS" OF THE STATE OF HAWAI I FOR THE PURPOSE OF REAPPORTIONING THE STATE LEGISLATURE?

2.

Question Two:

DID THE REAPPORTIONMENT COMMISSION HAVE THE ABILITY TO REMOVE IDENTIFIABLE AND LOCATABLE !fNON-PERMANENT RES I DENT S FROM THE 2 a 1 0 CENSUS COUNT?
II

3.

Question Three:

WOULD THE REAPPORTIONMENT COMMISSION'S EMPLOYMENT OF EXTRACTION METHOD liB, II EXTRACTION METHOD "crr OR OTHER STATISTICAL METHODOLOGY HAVE PRODUCED A POPULATION BASE THAT IS CONSISTENT WITH THE IIPERMANENT RESIDENTSII MANDATE OF ARTICLE IV?

4.

Question Four:

DID THE REAPPORTIONMENT COMMISSION ERR WHEN IT REFUSED TO USE A PERMANENT RESIDENTS u POPULATION BASE AT THE START OF ITS WORK AND FAILED TO GIVE IT AND ITS STAFF SUFFICIENT TIME TO DETERMINE THAT POPULATION BASE FROM THE START OF ITS WORK?
II

5.

Question Five:

DID THE REAPPORTIONMENT COMMISSION ERR WHEN IT FAILED TO REMOVE ALL IDENTIFIABLE AND LOCATABLE IINONPERMANENT RES IDENTS II FROM THE CENSUS COUNT FOR THE PURPOSE OF APPORTIONING STATE LEGISLATIVE SEATS AMONG THE STATE'S FOUR IIBASIC ISLAND UNITSII?

17

B.

RELIEFREQUESTED Petitioner requests the following determinations
t

writs

or orders: 1. That Reapportionment defective As to the this Final 2011 Reapportionment determine that is the Plan Final 2011

Court

Plan for

the State

Legislature

constitutionally

and invalid. 2. That As to Election this the Respondent Scott Naqo, Officer, State of Hawaii compel Respondent (a public given Scott Chief Nago, to Chief

Court

Election any

Officer, notice

State that

of Hawaii he the

official) of
.14

rescind 2011

public

may have State

the

Final

Reapportionment

Plan for

Legislature

14 Respondent Scott Nago's duty in this instance is limited to giving public notice of the Final 2011 Reapportionment Plan, which is a purely ministerial duty. Article IV, Section 2 and Section 25-2 (a), HRS. He exercises no discretion; he makes no decisions i and he casts no vote as to that plan. Compare with Barnett v. Broderick, 84 Haw. 109, 111, 929 P.2d 1359, 1361 (1996) (duty of court clerk to conform action to court's order is ministerial) i Kumulae v. Kalauokalani, 25 Haw 1, 8-9, 11 (1919) .. (duty of an election official to issue election certificate is ministerial) i Harris v. Cooper, 14 Haw. 145, 148 (1902) (duty of election official to put candidate's name on ballot is ministerial). See also Hanabusa v. Lingle, 119 Haw. 341, 346-347, 198 P.3d 604, 609-610 (2008) (mandamus relief available to compel an official to perform a ministerial duty no other remedy is available). The legislative reapportionment plan that Petitioner contends is constitutionally defective and invalid will govern all elections for seats in the State Legislature for the next five legislative sessions.

18

3. That and its

As to the Respondent State Reapportionment Commission this Court members, direct the

of

Hawaii

2011 Commission,

Reapportionment and file

individual

to prepare

a new legislative uses I1permanent otherwise State that

reapportionment residents complies
11

plan

for the State as the IV, than

Legislature base

that

of the

state

population

and that the

with

Article no later

Sections

4 and 6 of

Hawaii further,

Constitution this Court

December 1,

201115 and,

Court compel the Reapportionment complete findings that explain

Commission to file the rationale for

with this its plan.

WHY RELIEF A fundamental this Court can basic

III. SHOULD BE GRANTED constitutional Petitioner's that infringes interest right is at stake against right the and the and State

and must

protect

right on that in

government's dilutes

arbitrary

action

Petitioner's

representational

Legislature. A. THECOMMISSION WAS DISTRACTEDY PASTARGUMENTS B AND FEARSANDSTARTED OFF ON THEWRONG FOOT. From the Commission Hawaii
15

beginning destroy,

of not

its

work,

the

Reapportionment IV of I.C., the

acted

to

implement, I.B

Article

State

Constitution.

(See Part

and Part

above.)

office assist HRS.

The members of the Reapportionment Commission remain in when their plan is challenged and are also required to this Court. HAW. ST. CONST. art. IV, § 1; Section 25-9, (Appendices 1 and 2) 19

The
11

1991

and

2001

reapportionment

commissions

applied

the

permanent residents" population courts

base wi thout judicial challenge in States Department of

State or Federal Justice.

or from the United

Yet, the current 2011 Reapportionment to interfere

Commission

allowed

past fears and arguments of its constitutional members may be exposed

with its faithful

execution that its laws.16

duty, action that is so deliberate to liability under civil rights then waited 26, 2011

The Reapportionment 19, 2011 deadline) (one week to
11

Commission

to September plan filing

prior
II

to the

September

accommodate

the Hawaii

State Constitution the reasonable
ll

but had,

by then, denied itself to conduct a thorough,

(and the public) "good faith"

opportunity of the

and IIhonest

analysis
II

issue presented census count. The precluding available its data

-- to remove

"non-permanent

residents

from the

Reapportionment staff and itself

Commission from fully

gravely

erred

by all
11

investigating locate all

and methodology

to identify

and

non-

16 The Department of Attorney General's letter (Appendix 4) refers to Burns v. Richardson, supra, a well-known Hawaii case, in which the United States Supreme Court held that

"Ne i t.he In Reynolds v. Sims nor in any other r decision has this Court suggested that the States are required to include aliens, transients, short-term or temporary residents or persons denied the vote for conviction of crime in the apportionment base by which their legislators are distributed and against which compliance with the Equal Protection Clause is measured. The decision to include or exclude any such group involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere."
I

20

permanent

residents"

and by corrupting

the population

base.

More

importantly,

the Commission

did not use its authority under Section methodology by which it could the

25-3, HRS to establish identify and locate the

a specific

"non-permanent

residents.1I

Instead,

Commission

looked for ways not to do so and then complained

that it

lacked tools to execute its constitutional 26, 2011 plan filing deadline
B.

duty when the September

neared.
A DEFINITION FOR

THIS COURT HAS ALREADY PROVIDED THE TERM "PERMANENT RESIDENTS. "

In the Citizens significance of the term

case,

supra,

this

Court

explained term

the is

IIresident populations"

as that

used for redistricting found that the term

council seats in Hawaii County. nresident populations II rightfully

This Court excludes purposes

nthose who live in the county temporarily

for educational

or those who live in the county involuntarily so. " 108 Haw. at 323, 120 P.3d at 222. supra.

because ordered to do with

This is consistent

Burns v. Richardson,

This Court' s decision in Citizens gave the Commission ability to distinguish the Commission the a "resident" means, in from a "non-resident to that
II

the

and gave by the

addition

given

legislature individuals

in Section

25-3, HRS, to identify

and to locate those base. However,

and to remove them from the population Commission was not satisfied

the Reapportionment decision and assumed

with this Court's to use its own
II

that it had the "discretion" "resident" and
II

meaning of the term

permanent

residents.

21

C.

THE COMMISSION IGNORED ITS OWN WAREHOUSE AND ITS STAFF'S ABILITIES. After the Reapportionment 13, 14
II

OF TOOLS

Commission's 19 r 2011 that

own staff again it can
II

reported

on

September and

and

remove the

identifiable census count,

locatable

non-permanent Methods

residents riA, II
HB"

from

using

Extraction

and

nC,lI the 19, 2011
II

Reapportionment to remove only

Commission some
11

nonetheless the only

voted on September and

of but

identifiable in such doing,

locatable using

non-

permanent Method conceded
II

residents

numbers the

Extraction in essence

All (-15,660) that

In so

Commission June

it had erred

in its earlier

28, 2011 vote and appropriate

that it had denied methodology As Reapportionment opportunity use of

itself the opportunity

to establish

to identify stated in

and locate the IInon-permanent residents. II Part I.B. and itself
ll

Part (and

I.C, the

above, public)

the the

Commission

denied

to explore,

in an nhonest IIBIIand

and IIgood f a i t.h manner, the "
IIC,

Extraction

Methods

n as

well

as

any

other

available methodology, beginning residentsn under base nary to remove

as rational tools that it could use from the identifiable count, that and which locatable
II

non-permanent to do

from

the census

is its obligation

the law,

and to ensure

it had the correct

population

(lipermanent residentsll) before it started to develop prelimiapportionment and districting Plan. maps no less adopt the Final erred in

2011 Reapportionment this regard.

The Reapportionment

Commission

22

D.

THE COMMISSION COMPLEXITIES. It is fairly

SOUGHT clear to

TO see

AVOID that the

INTRAISLAND Reapportionment HAil at the last

Commission's

decision

to use

Extraction

Method

minute also reflects difficulty WITHIN the it would OAHU

a desire on the Commission's face in redrawing island
un i t;"

part to avoid the district of the lines
"riorr-

legislative where most

"ba s i.c
Tl

permanent

residentS

in the state are located.
11

The extraction and HAWAII

of

IInon-permanent residents, island units,
11

vis-a-vis

the OAHU as

ITbasic

is

a simple

calculation,

the

Reapportionment

Commission's

staff demonstrated. apportioning unit
11

(Appendix 5 -D) (and redistricting) would with become a seats WITHIN (but

However, the OAHU

IIbasic island task,

difficult 26,

achievable) filing

particularly only one

the away.

September Put

2011 plan the (and

deadline

week

bluntly,

Reapportionment not for any

Commission

acted as it did for its convenience The Reapportionment

compelling

reason).

Commission

erred in this regard. E. TECHNOLOGICAL CHANGES AFTER IIHICKELTI MAKE IT POSSIBLE TO IDENTIFY AND TO LOCATE "NON-PERMANENT RESIDENTS 11 AND THIS COURT SHOULD GIVE THE REAPPORTIONMENT COMMISSION TIME TO DO WHAT THE COMMISSION SHOULD HAVE DONE FROM THE BEGINNING. This Court should look at Hickel v. Southeast Conference,
846

P.2d 38

(Alaska 1992), a case in which the Alaska Supreme Court the good faith efforts that the Alaska redistricting could be the

addressed

board made to determine removed from the

if non-resident census
23

military personnel In that

1990

count.

case,

reapportioning methodologically persons

board's

expert

stated that "an accurate and that the extraction

survey was of such

impossible"

"would be impossible." concluded at

846 P.2d at 56.

(emphasis added) board had that the

The court therefore taken a "hard look"

that the reapportionment raised and found

the question

reapportioning non-resident erroneous.

body's decision military

to include

(rather than to exclude) base was not

personnel

in the population

In stark Commission its staff authority Commission census

contrast,

in

this

case,

the

Reapportionment or to direct it had informed the the

made no effort to do to do so so. from

to establish

a methodology even though

the beginning, its staff

When

eventually

that

"rion+pe rtnanerit; residents"

can be removed reliable time to

from the the its of

count by

through then

at had

least run

three out of

methods, perform position

Commission

constitutional

duty and had put itself In the awkward issue with the September final

having to resolve a critical filing deadline looming

26, 2011 plan district

and proposed

legislative

maps already

drawn and published. instead of taking a "hard look" at what was

Thus, possible,

the Reapportionment and chose

Commission the
II

took but "one quick look"
II

at the last moment

safest

extraction

method

to

"save" the final plan that it was inclined maintain four the current island apportionment units"

to adopt, which was to seats AMONG the Method
IIAII),

of legislative

"basic

(which is Extraction

and

without

justification. 24

This Court additional denied time that

can give the Reapportionment the Commission execute needs (and

Commission had

the

originally duty under

itself)

to faithfully

the Commission's error.

the law and to correct F.

the Commission's

THE COMMISSION DID NOT MAKE AN HONEST AND GOOD FAITH EFFORT TO EXECUTE ITS CONSTITUTIONAL DUTY. For Equal Protection purposes, this Court must also

determine whether the Reapportionment good faith effort

Commission

made an honest and for Equitable The record

to carry out its duty_

Citizens

and Responsible demonstrates

Government

v. County of Hawaii,

supra.

that in this case, Commission members consumed much of of philosophical ideas in their attempt

their time in the exchange

to rewrite the Hawaii State Constitution instead Sections of "permanent residents
11

to mean "total population" provided in Article IV,

as

4 and 6 of the Hawaii Further, its

State Constitution. abilities notwithstanding, the

staff's

Reapportionment

Commission

did not use its authority

(and in fact

refused to exercise permanent residents"

its authority)

to identify and locate the "non-

from the start of its work and, when pressed final legislative selected the district
11

and after its proposed been drawn Method
'IN')

maps had already (Extraction

and publ ished,

safe" option IV

as an accommodation IV), a choice

to Article

(and the voters who

adopted Article

that in the long run would have no seats AMONG the "basic

impact on the apportionment island units.ll

of legislative

25

This

Court

must

conclude

that

this

action

does

not

reflect the exercise of an honest and good faith effort on the part of the Reapportionment duty under the law. G. Commission to execute its constitutional

The Commission DESTROYED Gillt

erred in this regard. THE CONSTRUCT the OF ARTICLE approved

THE COMMTSSION IV. In Burns v.

suprat

fede.ral court

Hawaiits

two-tiered

apportionment

formula, holding:

This court is satisfied that Hawaii'.s uniquely centralized government structure, together with the other insular factors stated abovet justifies the convention's conclusion that if its voters are to have functional representation in their State legislature each basic island unit must be given meaningful representation therein .... 316 F. Supp. at 1292. (emphasis added) However, decided destroy its own. 2011 that the by its action, time had come the Reapportionment for it (not the Commission to

electorate) Article

the construct

of Article

IV and to rewrite

IV on

This Court need only look to the Commission's discussed in Part I.B { above
I

June 28, that the

minutes

as

proof

Commission

intended IV

to destroy on its

the construct The

of Article erred

IV and to in this

rewri te Article regard. H.

own.

Commission

THE COMMISSION IS REQUESTING DIRECTION FROM THIS COURT .. A recent account of the

JUDICIAL

GUIDANCE

AND

Reapportionment

Commission 's looking 24, 2011, to a

final action this Court

suggests for advice

that the Commission and direction. On

is actually September

reporter

for the 1!Honolulu City Beatll (Appendix 9) stated that the 26

Reapportionment additional were not maps

Commissionts

staff

"will

continue models
1S

working

on

based on other extraction
II

that ultimately noted to have

adopted.

The

Comrni ssi.on.' chair s because

explained

that work is continuing if the commission

such ongoing work "would sued.
II

prove helpful continued,

ends up being

The chair

IlWe've done the best we cant

but if the court decides

that we're not correct, to consider." The

then the court will have some alternatives continues to conduct 13, 2011. business as

Commission

noted by its agenda
8)

for a meeting

on October

(Appendix

The Commission than execute eventually the Hawaii

erred because

it tried to rewrite When

rather

State Constitution.

the Commission it had run a plan that

admitted

to its error on September properly that is

19, 2011t filed

out of time lacks

to do its work basis and

and then

a rational

constitutionally

defective. invalid a plan

This Court can and should set aside that constitutionally plan and direct that complies the Reapportionment Commission to prepare

with the Hawaii

State Constitution.

IV. CONCLUSION Believing rewrite the that it has the discretion to ignore and to

IIpermanent residents!! proviBion

of Article

IV of the started from

Hawaii State Constitution, off and ended the record. on the wrong

the Reapportionment foot.

Commission

This is clear and obvious

27

1.

The "permanent. residents"

of the state are

those who have the present and whose presence supra. 2. The are

intent to remain in the state not transitory in nature.

Citizens,

Reapportionment

Commission

had

the

ability at all times to identify and to locate the Hnonpermanent residents" and to remove them from the 2010

census count. 3.
lS

The removal with and

of "non-permanent by the

residents" State

consistent

mandated

Hawaii

Constitution. 4. it failed The Reapportionment Commission erred when

to take a "hard look" at the issue presented

and failed to make a "good faith" and IIhonest" effort to execute its constitutional 5. it apportioned duty. Commission erred when as it did

The Reapportionment

seats in the State Legislature
II

among the four "basic island units.

Request

for Relief requests this Court for relief as follows: Plan Final 2011

Petitioner 1. That Reapportionment defective

As to the Final 2011 Reapportionment this Court determine that the

Plan for the State Legislature

is constitutionally

and invalid.

28

2.

As to the Respondent Scott Naqo, Election Officer, State of Hawaii this Court compel Respondent (a public have given Scott official) of the

Chief Nago, Chief

That Election any

Officer, notice

State of Hawaii that he may

to rescind Final 2011

public

Reapportionment 3. That

Plan for the State Legislature. As to the Respondent State Reapportionment Commission this Court members, for direct of Hawaii 2011 Commission,

the Reapportionment

and its individual reapportionment

to prepare the State

and file a new legislative Legislature that uses the

plan

IIpermanent residentsrl otherwise complies State Constitution

of the state as the population IV, Sections

base and that

with Article

4 and 6 of the Hawaii and, further, to file with for its

no later than December

I, 201117 Commission

that this Court compel the Reapportionment this Court plan. DATED: Kailua-Kona, Hawaii, complete findings that explain

the rationale

October

11, 2011.

Michael J. Matsukawa MICHAEL J. MATSUKAWA Petitioner, Pro Se

lsi

lz.t{JltrM.7t~

17 The members of the Reapportionment Commission remain in office when their plan is challenged and are also required to assist this Court. HAW. ST. CONST. art. IV, § 1; Section 25- 9 HRS. (Appendices 1 and 2)
1

29

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