Tuesday, December 19, 2017

HSC Oral Arguments/Morita v Gorak, State of Hawaii

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.

Monday, June 12, 2017

KEDB - Kauai Energy Conference, Monday June 19, 2017

Taking advantage of panelists and speakers arriving next week to participate in the VERGE Hawaii 2017:  Asia Pacific Clean Energy Summit in Honolulu, the Kauai EconomicDevelopment Board (KEDB) is holding its energy conference on Monday, June 19 at the Kauai Marriott.  To address how businesses are and can adapt to a low-carbon future, the conference's theme is “Educate, Collaborate and Accelerate” and will focus on recent developments in clean energy and energy efficiency on Kauai and throughout Hawaii to help mitigate the challenge of climate change and its impact on our environment and economy.

The KEDB conference could not have been more timely.  With Trump's announcement to withdraw from the Paris Agreement, the burden to take on the global challenge of climate change will fall on the shoulders of state, county and city governments and business leadership.

Why should you attend?  The three-track conference (see page 2 of the link) has something for everyone:

The Energy Savings Track:  The objective of this track is to p
rovide practical information to aid a business owner or manager in making informed decisions to achieve energy cost savings.  Brush up on the latest opportunities to reduce energy usage to help your bottom line. Learn how do your use detailed energy consumption data to create savings.  Get an opportunity to talk to the experts in this 

Clean Transportation:   Get into the discussion on how can Kauai move to clean, low carbon fuels for ground transportation? Is there demand for electric vehicles and infrastructure?  Is the future near for more car sharing and autonomous vehicles? Are there cost-effective and affordable clean fuel choices for heavy duty vehicles and equipment like buses and trucks? What kinds of partnerships are required to accelerate the adoption of clean fuel options?

Low Carbon Future:  Learn how Hawaii's major fossil fuel using sectors, electricity, ground and air transportation sectors are currently working towards a low-carbon future.  Discuss with energy expert KateGordon on how we can ensure that our visitor
based economy continues to thrive in a low carbon future? Knowing that change is on the horizon, what opportunities exist to improve our longterm performance and simultaneously help our community prosper?

Monday, April 24, 2017

Gorak Nomination: The End Justify the Means?

On Friday, the Senate Committee on Commerce, Consumer Protection & Health heard Governor's Message No. 703, the nomination of Thomas Gorak for Hawaii Public Utilities Commissioner (PUC).  As I walked the hallways of the Capitol after testifying at the hearing against the Gorak nomination,  the underlying chatter amongst Gorak's supporters was that my lack of support and the Committee's denial was just sour grapes over the HECO-NextEra decision.

Really?  When does the end really justify the means?  I bet if the tables were turned and the merger had been supported by a Governor who wanted a favorable decision using the same tactics to remove and replace a sitting Commissioner two weeks before the biggest decision ever made at the PUC, these "supporters" would be filing the complaint along side me.    We all know the Governor could have sent a timely nomination, seeking the required advice and consent by the Senate prior to the Senate adjourning but he didn't.  Simply put, the timing of the Governor's actions and the optics look and smell like political meddling in a major decision while dissing the Senate's power and authority to advice and consent.

This legal controversy over how Governor Ige threw out Commission Michael Champley and replaced him with Gorak is now working its way through the Courts. To determine if the lower court ruling was wrong, there are three issues the Court will examine by interpreting the Constitution and state laws:  (1) what constitutes a vacancy and did a vacancy exist at the expiration of Commissioner Champley's term on June 30, 2016, (2)  does the Constitution override the state law on a holdover Commissioner and the Senate's duty to advise and consent to "qualify" a nominee, and (3) did I have standing to pursue the Quo Warranto Petition against Gorak.

Given Gorak's role as PUC Chief Counsel, I do not believe there is a way to extricate an evaluation of Gorak's character in the nomination process from this legal controversy until the legal issues are resolved by the courts. Here's what I said in my testimony:

. . . I believe Mr. Gorak shirked his duties as the PUC’s Chief Counsel by aiding the Governor’s agenda to improperly throw out Commissioner Michael Champley and subsequently allowing the Governor to name Mr. Gorak as Commissioner Champley’s replacement. I feel this was contrary to his duties and responsibility as the PUC Chief Counsel and not in accordance with the Hawaii Rules of Professional Conduct.  Rule 1.13(h) of the Hawaii Rules of Professional Conduct states:
 If a government lawyer knows that an officer, employee or other person associated with the government is engaged in action, intends to act or refuses to act in a matter related to the lawyer's representation that is a violation of a legal obligation to the government or the public, or a violation of law which reasonably might be imputed to the government, the lawyer shall proceed as is reasonably necessary in the best interest of the government or the public.
In his role as PUC Chief Counsel, Mr. Gorak should have been well aware of the laws specific to the PUC.  If he were to claim plausible deniability one would have to question either his ethics or competency in that role. I sincerely believe Mr. Gorak exhibited a huge character flaw when he allowed himself to become a political pawn, throwing the need to maintain the integrity and independence of the PUC to the wayside at a time when the credibility of the PUC was being severely tested.  The removal of Commission Michael Champley, the holdover Commissioner and the de jure officer, was contrary to State law and two previous Attorney General Opinions which have been in effect for almost 40 years.

Click here for my testimony before the Senate Committee.

Click here for the opening brief on my appeal before the Intermediate Court of Appeals.

In taking the action to deny Gorak's nomination, Chair Roslyn Baker said, "The truly important issues that are at stake here are the legitimacy of how Mr. Gorak has come to hold the position of a Commissioner, the constitutional authority of the Senate to advise and consent, and the effect, that any action by this Committee, will have on ongoing consideration of the Senate's constitutional authority by the Intermediate Court of Appeals."

As I said in an earlier blog post, "We all should be concerned about this unchecked power which Judge Nacino's ruling gave to Governor Ige as it affects other boards and commissions too.

Gorak's nomination comes with a lot of baggage and there is no way to untangle and extricate possible complicity issues until this legal controversy is settled by the Courts.  Let process prevail!