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Thursday, March 14, 2013
SB286: Solomon Decision Allows Legislature to Define 'Permanent Resident'
By News Release @ 2:53 PM :: 7113 Views :: Hawaii State Government, Military, Office of Elections

UPDATE: SB286 March 14, 2013: The committees on JUD recommend that the measure be PASSED, WITH AMENDMENTS. The votes were as follows: 10 Ayes: Representative(s) Rhoads, Har, Belatti, Brower, Kawakami, C. Lee, Tsuji, Wooley, McDermott, Thielen; Ayes with reservations: none; Noes: none; and 3 Excused: Representative(s) Cabanilla, Carroll, Ito.

Hawaii House committee advances bill changing reapportionment to include nonresident military

AP 3-14-2013: Judiciary committee Chairman Karl Rhoads says he chose to keep the bill alive because it is helping to settle the lawsuit.

Reapportionment Project Manager David Rosenbrock says reapportionment excludes students and military service members who haven't declared Hawaii residency. That means that in 2011 more than 100,000 people weren't counted.

Advocates want to base district representation on the U.S. Census instead. They say it's an issue of equality.

But opponents worry that doing so could decrease neighbor islands' representation. Some also caution that a constitutional amendment might be necessary.

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Hawaii State House of Representatives

Committee on Judiciary Representative Karl Rhoads, Chair Representative Sharon E. Har, Vice Chair

Tuesday, March 12, 2013 2:00p.m. State Capitol Room 325

Testimony IN SUPPORT of S.B. 286 SD1 (SSCR636).

Chair Rhoads, Vice Chair Har, and members of the Judiciary Committee:

We are testifying in strong support of S.B. 286 SD1, which amends Hawaii Revised Statutes § 25-2 tn define "permanent resident" for purposes of state reapportionment and redistricting as any person counted as a "usual resident" of Hawaii by the U.S. Census. We support an immediate effective date for the bill.

We represent the plaintiffs in Kostick v. Nago, Civ. No. 12-00184, a case now pending before a three-judge U.S. District Court challenging the State of Hawaii's 2012 Reapportionment Plan as unconstitutional because it "extracted" 108,767 military servicemembers, their families, and university students who do not qualify to pay in-state tuition, from the population because they were determined by the Reapportionment Commission to not qualify as "permanent residents" because the Commission concluded they do not have an intent to remain permanently in Hawaii.

We testified earlier in support in the Senate that the bill should be adopted for the following reasons: (1) Equal Protection requires that all persons are counted; (2) "Domicile" (physical presence plus an intent to remain) is impossible to determine for a class of people, and the way in which the definition is applied currently invites legal challenges; (3) Hawaii is the sole state that does not use Census population (with the exception of Kansas, which conducts its own survey of servicemembers' residence); and (4) federal and county districting use Census population, and doing so for statewide reapportionment would be more cost-effective and efficient.

To supplement those reasons, we submit this testimony to make two additional points: (1) the Legislature has the ability to define terms in the Hawaii Constitution, and (2) the Census already excludes transients and includes only those persons who are in Hawaii physically, and who have "an element of allegiance or enduring tie" to Hawaii. Franklin u. Massachusetts, 505 U.S. 788 (1992). Thus, there is nothing inconsistent between the definition in SB 286 SD1 and the Hawaii Supreme Court's definition of"domiciliary."

I. The Legislature Has Authority to Define Constitutional Terms

There are questions whether the Legislature can define "permanent resident" by statute, or whether an amendment to the Constitution is the only means to define the term. The "legislature has a broad power to define terms for a particular legislative purpose, and the courts, as a general rule of construction, are bound to follow legislative definitions of terms rather than commonly accepted dictionary, judicial or scientific terms." In re Appeal of Hawaiian Tel. Co., 61 Haw. 572, 579, 608 P.2d 383, 388 (1980). This power includes defining terms in the Hawaii Constitution. See, e.g., Hoohuli u. Ariyoshi, 631 F.Supp. 1153 (D. Haw. 1986). The Legislature has the power to adopt statutes modifying or changing common law as may have been established by decisions of courts. Bissen u. Fujii, 466 P.2d 429, 431, 51 Haw. 636, 638 (1970).

The main point raised in opposition is that the Hawaii Supreme Court decision in Solomon u. Abercrombie, 126 Haw. 283, 270 P.3d 1013 (2012) deprived the Legislature of this power because the court defined "permanent resident" as "domiciliary" (those who are physically present in Hawaii, and who also have an intent to remain permanently), and this definition cannot be further defined except by Constitutional amendment. This argument, however, ignores the limited scope of Solomon. Critically, the court did not rely upon either the plain meaning of the constitutional text or the legislative history of the 1992 amendment that adopted "permanent resident." Rather, in determining that "permanent resident" means "domiciliary," the court merely cited its own earlier decision in Citizens for Equitable and Responsible Gou't u. County of Hawaii, 108 Haw. 318, 120 P.3d 217 (2005), a case holding that the term "resident" in a county charter means "domiciliary," which requires a demonstrated intent to remain in Hawaii. Solomon simply transported that definition from the county charter without further citation or support. This did not "constitutionalize" the court's definition, leaving the Legislature free to further define the term.

II. The Census Already Excludes Transients

We also note that there is nothing inconsistent between the Solomon definition (presence plus intent to remain) and the Census population count, and if the concern is counting only those persons who are in Hawaii "permanently," the Census already excludes transients. The Census counts "usual residents"-people who are physically present in Hawaii on Census Day and have "an element of allegiance or enduring tie" to the state. Franklin, 505 U.S. at 789. The Census defines "usual residence" as the "the place where a person lives and sleeps most of the time. It is not the same as the person's voting residence or legal residence." For military personnel stationed within the United States, they are counted as "usual residents" of the state in which they are stationed.

In sum, we respectfully urge this Committee to adopt SB 286 as presently drafted.

Very truly yours,


Robert H. Thomas Anna H. Oshiro Mark M. Murakami

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AP: Bill up for review on tally of military for voting units


Reapportionment Lawsuit:





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