On December 7, the Hawaii Supreme Court (HSC) heard oral arguments for the lawsuit I filed challenging the interim appointment of Thomas Gorak to the Hawaii Public Utilities Commission by Governor Ige in June 2016. It will have a broad affect on how nominations and appointments are handled in the future for all boards and commissions should the definition of vacancy be expanded to include the end of a set term. Here's the HSC's description of the case and link to the oral arguments:
This appeal concerns Governor David Ige’s 2016 appointment of Thomas Gorak to the Public Utilities Commission (“PUC”). According to Hawaii Revised Statutes (“HRS”) § 269-2 (governing the PUC), which incorporates HRS § 26-34 (governing the selection and terms of members of boards and commissions), PUC commissioners are appointed after the Governor nominates them and the Senate confirms the nomination.
Prior to Gorak’s appointment, the PUC consisted of Commissioners Randall Iwase, Lorraine Akiba, and Michael Champley. Champley’s term was set to expire on June 30, 2016. During the regular legislative session of 2016, Governor Ige did not nominate Champley’s successor, and no successor was confirmed. After the close of the 2016 legislative session, on June 29, 2016, Governor Ige announced that Gorak would replace Champley on an interim basis, effective July 1, 2016.
As authority for his appointment, the governor cited article V, section 6 of the Hawai i State Constitution. That section is titled “Executive and Administrative Offices and Departments,” and it states, in relevant part, the following:
When the senate is not in session and a vacancy occurs in any office, appointment to which requires the confirmation of the senate, the governor may fill the office by granting a commission which shall expire, unless such appointment is confirmed, at the end of the next session of the senate.
Champley, for his part, informed the governor that he intended to stay on as a hold-over commissioner, citing to HRS § 269-2(a), which provides that each PUC member “shall hold office until the member’s successor is appointed and qualified.”
On July 1, 2016, Gorak was sworn in as a PUC commissioner. Later that month, Hermina M. Morita challenged the appointment via a Complaint and Quo Warranto petition filed against Gorak and the State of Hawai i in the Circuit Court of the First Circuit. Morita argued that Champley remained the lawful office holder, citing HRS § 269-2, as well as HRS § 26-34(b), which provides, in relevant part, “Any member of a board or commission whose term has expired and who is not disqualified for membership under subsection (a) may continue in office as a holdover member until a successor is nominated and appointed. . . .”
The parties filed cross-motions for summary judgment. After a hearing, the circuit court concluded that a vacancy on the PUC occurred when Champley’s term expired, and that Governor Ige validly appointed Gorak as interim commissioner under article V, section 6. The circuit court also concluded that Morita lacked standing to pursue declaratory relief. The circuit court thus granted Gorak and the State’s motion for summary judgment and denied Morita’s cross-motion for partial summary judgment. Morita appeals from the circuit court’s Final Judgment in favor of Gorak and the State and against her.
On appeal, Morita raises as error the circuit court’s conclusions that (1) a vacancy occurred at the expiration of Champley’s term; (2) Governor Ige validly appointed Gorak to the PUC; and (3) she lacked standing to pursue declaratory relief.The crux of this case is the word "vacancy." In American jurisprudence an office vacancy is defined as empty as a result of a resignation or death of the office holder. There is agreement that the Governor can use his constitutionally given Interim Appointments Power to fill a vacancy and appoint someone to a board or commission when the Senate is not in session. However, the State of Hawaii is attempting to expand the definition of vacancy by now including the end of a set term. Governor Ige did this through a 2016 Attorney General opinion which supplanted two previous opinions which have stood for more than 30 years.
There is a specific provision in State law (HRS 269-2) regarding the appointment of PUC commissioners, stating that each PUC member "shall hold office until the member's successor is appointed and qualified." On its face, the law purposely avoids a vacancy when a PUC commissioner's term ends. In this lawsuit, the State argues that the Interim Appointments paragraph specifically does not state the words "as provided by law" although it is stated in following paragraphs. Interestingly, the State is not arguing to declare any holdover laws unconstitutional.
Another interesting aspect to this case is that Article V, Section 6 of the Constitution covers cabinet appointments to the 9 principal departments of the Executive Branch. The PUC is not one of these principal departments. The PUC is a creature and extension of the Legislature, formed by statute and is given its authority through the Legislature, not the Constitution.
As I mentioned earlier, this case will have an impact on all boards and commissions; how candidates are nominated and appointed with the advise and consent of the Senate. It will help to clarify if the term "appointed and qualified" requires Senate confirmation to be able to nullify the current Attorney General's opinion which states that the Governor alone can "qualify" a candidate.