Hawaii Supreme Court: ‘Best Efforts’ Are Not Good Enough In Reapportionment. But…

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Robert Thomas

BY ROBERT THOMAS – No one exiting the Hawaii Supreme Court courtroom yesterday after oral arguments in the redistricting cases (live blog archive here) should have had much doubt about what the court was going to do: it was quite clear it would invalidate the Hawaii Reapportionment Commission’s recent efforts at districting and divvying up the seats in the Hawaii Legislature. The Hawaii Constitution’s mandate to “us[e] 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,” made the Commission’s approach of including nonpermanent residents in the population base ripe for challenge, despite the Commission’s apparent best efforts to work with the available data.

Late in the day, the court issued two orders (here and here) granting the writs of mandamus in the respective cases, concluding:

[T]he petition for a writ of mandamus and judicial review is granted. The 2011 Final Reapportionment Plan for the state legislature is hereby invalidated. The 2011 State of Hawai’i Reapportionment Commission shall 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. The Chief Election Officer shall rescind the publication of the 2011 Final Reapportionment Plan for the state legislature. An opinion will follow.

We will post the opinion(s) when available. As noted in the Star-Advertiser‘s report, this may not be the final word: 

[Reapportionment Commission Chair Victoria] Marks, however, expressed frustration.”I wish the lawyer that represented the commission had understood the record better and had responded to some of the questions with better data,” she said.[*]

She said the commission understood the constitutional mandate, but had concerns about basing the exclusion on unreliable data.

“I think you’re opening yourself up to a federal lawsuit if you exclude (military) dependents on an across-the-board basis,” she said, noting that some dependents are licensed nurses and public school teachers here.

The commission excluded about 16,000 nonpermanent residents, active-duty military living in barracks and some out-of-state college students, Marks said.

But the court essentially found the panel didn’t exclude enough nonpermanent residents, she said.

There will be more, so stay tuned.

*A procedural note: the Respondents in the two cases were the Reapportionment Commission and Governor Abercrombie, respectively. Each was represented by a deputy State Attorney General, despite the fact that the Commission and the Governor took opposite and adverse positions on the merits (the Commission argued that its efforts were not invalid, while the Governor supported the Petitioners). This is permissible under State v. Klattenhoff, 71 Haw. 598, 801 P.2d 548 (1990), despite the conflict of interest.

In Klattenhoff,  a deputy in one branch of the State Attorney General’s office defended Klattenhoff, while at the same time another deputy from another AG’s branch was prosecuting him. The court in that case held that “due to the AG’s statutorily mandated role in our legal system, we cannot mechanically apply the Code of Professional Responsibility to the AG’s office,” and “the ethical rules for private law firms are not necessarily applicable, in all cases, to the AG’s office.” The Hawaii AG’s office is often noted to be the “largest law firm in Hawaii” and presently employs 180 attorneys in a multitude of branches and offices. In Klattenhoff, the deputies were in separate offices and were isolated from each other, and we presume the same is true in the reapportionment cases.





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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at rht@hawaiilawyer.com He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.