Morita v. Gorak. ( 2019 )

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Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
18-NOV-2019
07:54 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
HERMINA M. MORITA,
Petitioner/Plaintiff-Appellant,
vs.
THOMAS GORAK and STATE OF HAWAII,
Respondents/Defendants-Appellees.
SCAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-XX-XXXXXXX; S.P. NO. 16-1-0251)
NOVEMBER 18, 2019
NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.,
WITH RECKTENWALD, C.J., DISSENTING
OPINION OF THE COURT BY POLLACK, J.
In accordance with the structure of our political
system, the appointment of many government officials is a shared
responsibility of the executive and legislative branches. The
governor is entitled to choose a nominee for such positions, but
the nominee typically may not take office until the senate has
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voted to confirm the individual, thus ensuring the appointment
is generally agreeable to both elected branches.
Balanced against these political considerations are
the practical realities of ensuring the day-to-day operations of
public institutions. Governmental agencies may experience
difficulties fulfilling their duties when offices that are
necessary for their administrative functioning are left vacant.
To protect against disruption, the Hawai‘i Constitution permits
the governor to make interim appointments to offices that
require senate confirmation when a vacancy arises and the senate
is not in session. Additionally, the legislature has
statutorily provided for certain office holders to continue
their service as a “holdover” official following the expiration
of their term, remaining in office until their successor is
appointed.
This case presents a question as to the interaction of
these provisions: is the governor entitled to make an interim
appointment when the term of an official who is statutorily
permitted to holdover expires and the senate is not in session?
Because there is no indication in the language or the
legislative history of the holdover statutes to limit the
governor’s authority to make interim appointments and the
statutes would be constitutionally suspect if the legislature
intended to achieve such an outcome, we conclude that the
2
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governor is permitted to make an interim appointment under these
circumstances.
I. BACKGROUND
A. Facts
The facts in this case are undisputed.1 Prior to June
30, 2016, the Hawaii Public Utilities Commission (PUC) was
composed of three commissioners: Randall Iwase, Lorraine Akiba,
and Michael Champley. Champley’s term as commissioner was
scheduled to expire on June 30, 2016. The 2016 legislative
session ended on May 5, 2016, without Governor David Ige
submitting a nomination for a new commissioner to replace
Champley to the Senate for confirmation.
On June 21, 2016, Governor Ige sent Champley a letter
informing him of the imminent expiration of his term and
thanking him for his service. Champley responded in a letter
dated June 28, 2016, stating that he intended to continue to
serve as a “holdover” commissioner until his successor was
appointed and confirmed by the senate pursuant to Hawai‘i Revised
Statutes (HRS) § 269-2(a) (2007). Nevertheless, Governor Ige
announced the following day that he intended to exercise the
governor’s constitutional authority to temporarily fill
1
After the filing of the Complaint, the parties filed Joint
Stipulated Facts, which detail the events leading to the current suit.
3
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vacancies that occur while the senate is in recess to appoint
Thomas Gorak to replace Champley following the expiration of
Champley’s term. Gorak was sworn in as commissioner on an
interim basis on July 1, 2016.
B. Circuit Court Proceedings
On July 15, 2016, Hermina Morita, a member of a public
utility cooperative that is regulated by the PUC, filed a
complaint and quo warranto petition (Complaint) against Gorak
and the State of Hawaii in the Circuit Court of the First
Circuit (circuit court).2 The Complaint alleged that since Gorak
was sworn in, he had wrongfully occupied the office of the
commissioner of the PUC because Champley was still the lawful
officeholder until his successor was confirmed by the senate.
Quoting HRS § 269-2, the Complaint stated that “[e]ach member
[of the PUC] shall hold office until the member’s successor is
appointed and qualified.” The Complaint pointed to language
included in a 1980 Hawaii Attorney General Opinion to argue that
no vacancy exists at the expiration of an incumbent’s term when
a statute allows the incumbent to continue in office until a
successor is appointed. (Citing Op. Att’y Gen. No. 80-4
(1980).) Thus, the Complaint alleged, because no vacancy
2
The Honorable Edwin C. Nacino presided.
4
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existed, the interim appointment power of the governor was not
implicated. (Citing Op. Att’y Gen No. 80-4, at 2.)
The Complaint contained four counts of relief, though
only two are relevant in this appeal.3 Count I sought an order
pursuant to HRS § 659-6 (2016)4, the quo warranto statute,
declaring that Gorak did not properly hold the office of PUC
commissioner and prohibiting him from further performing any of
the post’s official duties.5 Count III sought a declaratory
judgment as to whether Gorak lawfully held the office of PUC
commissioner.
The State and Gorak (collectively, Gorak) filed a
joint Answer denying that Gorak wrongfully occupied or usurped
the office of PUC commissioner and that Champley was the lawful
3
The parties stipulated to the dismissal of Count II (“Common Law
Quo Warranto” against Gorak) and Count IV (“Private Attorney General
Doctrine” against the State) of the Complaint without prejudice.
4
HRS § 659-6 provides the following in relevant part:
[(a)] If a person to whom an order is directed with respect
to an office of which the person performs the duties does
not answer within the time allowed or the answer is
insufficient or it is found that the person has usurped the
office or continues in it unlawfully, the court in addition
to declaring the person not qualified to fill the office
and forbidding the person to perform the duties of the
office any longer, may direct that a new appointment be
made and may grant other appropriate relief.
5
The parties stipulated to the issuance of an order of quo
warranto, which directed Gorak to file an answer to the Complaint and to
“state the authority under which” he “claim[ed] to act as a Commissioner” of
the PUC.
5
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officeholder.6 On the same day that Gorak filed his Answer, he
also filed a Motion for Summary Judgment arguing that he was
properly appointed as a commissioner of the PUC under the
interim appointments provision of the Hawaii Constitution, which
authorized the governor to fill a vacancy in any office when the
senate is not in session. Gorak contended that this provision,
contained in article V, section 6 of the Hawaii Constitution,
did not include the phrase “as provided by law,” and the interim
appointment power was therefore self-executing; that is, it
could be exercised on its own without any requirement for
implementing legislation. (Citing State v. Rodrigues, 63 Haw.
412, 414, 629 P.2d 1111, 1113 (1981).) As a result, Gorak
asserted, the governor’s interim appointment authority was
subject only to the limitations stated in the constitutional
provision itself, and any statutes touching upon interim
appointments are effective only if consistent with the
provision.
The statute in dispute in this case, Gorak stated, was
HRS § 269-2, which provides that “[e]ach member [of the PUC]
shall hold office until the member’s successor is appointed and
6
Gorak admitted that an “actual controversy” existed regarding
whether Gorak was properly appointed and qualified so as to end Champley’s
term on July 1, 2016.
6
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qualified.”7 This statute allows, though does not require, a
member of the PUC to continue to serve in the position after the
expiration of the member’s term as a “holdover,” Gorak
explained. But, Gorak argued, this statute cannot be
interpreted to circumvent the governor’s interim appointment
authority. Therefore the statute cannot prevent a vacancy from
occurring upon the expiration of a term, Gorak contended;
otherwise the governor’s constitutional authority would be
“substantially--and in individual cases, completely--undercut”
as it would allow the legislature to define when the governor
can exercise a power that the constitution granted solely to the
governor. Defining “vacancy” to include the end of a set term
is consistent with the authorities granted to the governor in
the Hawaii Constitution, Gorak asserted. Accordingly, Gorak
concluded that the expiration of Champley’s term constituted a
7
Gorak argued that it was significant that the statute uses the
word “qualified” rather than the phrase “confirmed by the senate,” which is
used in similar statutes. (Citing HRS §§ 302A-123 (Supp. 2016), 304A-104
(Supp. 2016).) Because the legislature chose to use a different term in HRS
§ 269-2(a), Gorak contended, the court should presume that the difference is
intentional and give the difference effect when construing the statute.
(Citing Agustin v. Dan Ostrow Const. Co., 64 Haw. 80, 83, 636 P.2d 1348, 1351
(1981).) “Qualified,” Gorak contended, means the governor has reviewed the
appointee’s qualifications and the appointee has taken the oath of office,
whereas “confirmation” is a function of the senate that is used for full-term
appointments. (Citing Haw. Const. art. XVI, § 4; Haw. Const. art. V, § 6;
Sierra Club v. Castle & Cooke Homes Hawaii, Inc., 132 Hawaii 184, 192, 320
P.3d 849, 857 (2013).)
7
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“vacancy” that Governor Ige could fill using his interim
appointment power.8
Morita responded by filing a consolidated Cross-Motion
for Partial Summary Judgment (cross-motion) and opposition to
Gorak’s motion, arguing that the Hawaii Constitution only grants
the governor the interim appointment power when there is a
“vacancy,” and the term “vacancy” means only an office that is
unoccupied or empty. (Citing Office of Hawaiian Affairs v.
Cayetano, 94 Hawaii 1, 6 P.3d 799 (2000).) Here, Morita
contended that there was no “vacancy” for which Governor Ige
could utilize his interim appointment power because Champley did
not resign and was not otherwise removed from office. Morita
also argued that the meaning of “vacancy” necessarily derives
from statutory authority because the Hawaii Constitution is
silent as to the duration of a PUC commissioner’s term. Under
HRS § 269-2(a), Morita asserted, there was not a vacancy because
Champley was entitled to hold the commissioner position until
Champley’s successor was confirmed by the senate--a necessary
legal requirement to be “qualified” as a commissioner of the PUC
under the statute. Thus, Morita concluded that the governor’s
8
Regarding declaratory relief, Gorak also argued that Morita
lacked standing because the Complaint made no allegations on which a
“distinct and palpable” injury to Morita could be based and “[a]ny such
allegation would likely be based on speculation and conjecture in any event.”
(Citing Hanabusa v. Lingle, 119 Hawaii 341, 347, 198 P.3d 604, 610 (2008).)
8
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interim appointment power was not implicated because there was
not an actual vacancy at the time of Gorak’s appointment.9
Pursuant to the parties’ stipulation, the Hawai‘i State
Senate filed an amicus curiae brief in support of Morita.
Included as exhibits to the brief were two attorney general
opinions. The first was the 1980 letter cited by the Complaint,
Opinion 80-4, which was issued in response to inquiries by the
chairman of a senate committee regarding the length of time a
holdover official is authorized to continue serving if the
official’s nomination for a second term is rejected by the
senate. In explaining the operation of a holdover statute, the
opinion stated the following:
Where a statute specifies that the incumbent shall continue
to hold office until his successor is appointed and
qualified, it is well settled that the incumbent retains
his office as a de jure officer and no vacancy exists at
the expiration of the incumbent’s term. Therefore, the
interim appointment power of the governor is not activated.
Op. Att’y Gen. No. 80-4, at 2.
Also attached to the amicus curiae brief was a second,
more recent attorney general opinion. In response to questions
posed by the Senate President following Gorak’s ostensible
interim appointment, the attorney general issued Opinion 16-3,
which concluded that “the Governor is authorized by article V,
9
Morita argued that she had standing to obtain declaratory relief
because she suffered an injury in fact as a result of the State wrongfully
paying Gorak’s salary using funds she contributed to as taxpayer.
9
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section 6 of the Hawai‘i Constitution to appoint a successor
member to the PUC when the term of the incumbent member expires,
and irrespective of whether the incumbent continues to serve as
a holdover member.” Op. Att’y Gen. No. 16-3, at 1 (2016). The
opinion “acknowledge[d] that some portions of Attorney General
Opinion No. 80-4 included statements that indicated otherwise.”
Id. The opinion stated, however, that “those issues were not
central to the issue resolved in that opinion and are superseded
by the analysis offered here.” Id.
The Senate asserted in its brief that the conflicting
attorney general opinions exemplified the actual controversy at
issue in the case. The latter opinion misinterpreted article V,
section 6, the Senate argued, by ignoring the different ways in
which the Hawai‘i Constitution provides for the appointment and
removal of single executive department heads, members of boards
and commissions that head principal departments, and all other
officers that require senate confirmation. The constitution
makes only single executive department heads removable at the
governor’s discretion, the Senate contended. By contrast, the
terms of office and removal of department-head commission
members and all other officers requiring senate confirmation are
set by statute, the Senate continued, and the governor cannot
use the interim appointment power to circumvent the requirements
the legislature has prescribed.
10
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In a consolidated reply to Morita and the Senate’s
respective filings, Gorak reiterated the arguments from his
motion, stating that the legislature may define a “vacancy” only
if it does so in a manner consistent with the grant of power in
article V, section 6 of the Hawaii Constitution. Morita’s
interpretation of “vacancy” under HRS § 269-2, Gorak contended,
impermissibly limited the governor’s constitutional interim
appointment power and threatened the balance between the
executive and legislative branches of government.
The circuit court granted Gorak’s Motion for Summary
Judgment and denied Morita’s cross-motion. The court found that
“Champley’s term of office . . . expired on June 30, 2016, and
that a vacancy occurred for purposes of article V, section 6 of
the Hawaii Constitution upon the expiration of Mr. Champley’s
term of office.” Therefore, the court concluded that “Governor
Ige’s interim appointment of Mr. Thomas Gorak as a commissioner
on the PUC when the Senate was not in session was valid.”10
Counts I and III were accordingly dismissed without prejudice.
On October 17, 2016, Morita filed a timely notice of appeal
challenging the circuit court’s Final Judgment in Favor of
10
The court also found that Morita failed to establish that she had
standing to obtain declaratory relief.
11
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Respondent-Defendants Thomas Gorak and the State of Hawai‘i and
Against Petitioner-Plaintiff Hermina M. Morita (judgment).
C. Subsequent Events
On March 28, 2017, during the course of briefing
before the Intermediate Court of Appeals (ICA), Governor Ige
submitted Gorak’s interim appointment as PUC commissioner to the
Senate for confirmation. 2017 Senate Journal, at 396 (Gov. Msg.
No. 703); see also Gov. Msg. No. 703, 29th Leg., Reg. Sess.
(2017).11 One month later, the Senate voted to reject Gorak’s
confirmation. 2017 Senate Journal, at 591-94. Following the
close of the 2017 regular legislative session, Governor Ige
again invoked his interim appointment powers to name James P.
Griffin as PUC commissioner on an interim basis. Press Release,
Hawai‘i Governor’s Office, Governor Ige Appoints UH Faculty
Member, Researcher James Griffin to Public Utilities Commission
(May 19, 2017).12 Thereafter, Governor Ige submitted Griffin’s
appointment to the Senate during a special session for
confirmation, and Griffin was unanimously confirmed by the
11
https://www.capitol.hawaii.gov/Archives/measure_indiv_
Archives.aspx?billtype=GM&billnumber=703&year=2017 [https://perma.cc/VGG9-
A98U].
12
https://governor.hawaii.gov/newsroom/governors-office-news-
release-governor-ige-appoints-uh-faculty-member-researcher-james-griffin-to-
public-utilities-commission/ [https://perma.cc/857Q-FAAY].
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Senate on August 31, 2017.13 2017 Senate Journal, Spec. Sess.,
at 1 (Gov. Msg. No. 3); id. at 40. Although it had participated
as amicus curiae before the trial court, the Senate made no
further filings or appearances throughout the appeal of this
case.
After the close of briefing, Morita filed an
application for transfer to this court, arguing that the case
involved a matter of fundamental public importance that turned
on a novel question of law. Gorak filed a response stating he
had no objection to transfer, and this court accepted Morita’s
application on July 19, 2017.
II. STANDARD OF REVIEW
This court reviews questions of constitutional law de
novo under the “right/wrong” standard. State v. Sasai, 143
Hawaii 285, 294, 429 P.3d 1214, 1223 (2018); State v. Arceo, 84
Hawaii 1, 11, 928 P.2d 843, 853 (1996).
III. DISCUSSION
Article V, section 6 of the Hawai‘i Constitution
empowers the governor to make interim appointments to offices
13
Although the Senate’s rejection of Gorak’s confirmation and
Griffin’s subsequent appointment and confirmation is not in the record, we
have the discretion to take judicial notice of such matters under Hawaii
Rules of Evidence (HRE) Rule 201 (2016) as “it is a matter of public record
and easily verifiable.” Williams v. Aona, 121 Hawaii 1, 11 n.6, 210 P.3d
501, 511 n.6 (2009).
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that require senate confirmation when a vacancy arises in such
office and the senate is not in session. Rather than following
the typical procedure, under which the governor nominates an
individual who takes office for a full term if the senate votes
to confirm the nominee, an interim appointee may be sworn into
office at the time the appointment is made effective, and the
senate may thereafter vote to confirm the interim appointment.
Haw. Const. art. V, § 6. If the senate declines to do so, the
interim appointment expires at the end of the next legislative
session. Id.
The constitution itself requires senate confirmation
for the appointment of the heads of principle executive
departments, but the governor’s interim appointment power is not
limited to these offices. It applies when there is a vacancy in
“any office, appointment to which requires the confirmation of
the senate,” including those that the legislature has chosen to
statutorily condition appointment on senate confirmation. See
id. The legislature has so conditioned appointment to the
office of PUC commissioner, which is established by HRS § 269-2.
HRS § 269-2(a) states in relevant part, “There shall be a public
utilities commission of three members, to be called
commissioners, and who shall be appointed in the manner
prescribed in section 26-34, except as otherwise provided in
this section.” HRS § 26-34(a) (2009) in turn provides that
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“[t]he members of each board and commission established by law
shall be nominated and, by and with the advice and consent of
the senate, appointed by the governor.” There is accordingly no
dispute that the governor is entitled to exercise the interim
appointment power if a vacancy occurs on the PUC when the senate
is not in session.
This case instead turns on when the office of PUC
commissioner may be considered vacant for purposes of the
interim appointment power.14 Under HRS § 269-2(a), “[a]ll
members [of the PUC] shall be appointed for terms of six years
each,” and “[e]ach member shall hold office until the member’s
successor is appointed and qualified.” A PUC commissioner thus
typically serves for a designated term,15 then continues to hold
14
As a threshold matter, Morita preemptively argues that any
concerns about mootness may be overcome by the public interest exception to
the doctrine that this court has recognized. This court has stated that we
may decide the merits of a case in which we cannot order the requested relief
if there are public interests at stake and the question at the heart of the
case is likely to recur, making an authoritative determination of the legal
issues involved desirable for the future guidance of public officers. Wong
v. Bd. of Regents, 62 Haw. 391, 395-96, 616 P.2d 201, 204 (1980) (quoting
Johnston v. Ing, 50 Haw. 379, 381, 441 P.2d 138, 140 (1968)). PUC
commissioners make important decisions regarding public utilities, and their
terms of office routinely expire after the last day of the regular
legislative session. A conflict over the governor’s authority to make an
interim appointment during a commissioner’s holdover service is thus likely
to recur, and it is in the public interest that this court resolves this
case. We thus agree that a mootness argument would easily be dispensed with
because this case would fall into the public interest exception in any event.
15
Although HRS § 269-2 states that a commissioner’s term shall be
six years, HRS § 26-34(c), which applies to the PUC when HRS § 269-2 does not
provide otherwise, specifies that “[a] vacancy occurring in the membership of
any board or commission during a term shall be filled for the unexpired term
thereof, subject to Article V, section 6 of the Constitution of the State.”
(continued . . .)
15
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office as an out-of-term “holdover” until the commissioner’s
successor is appointed and qualified. If the office of PUC
commissioner was vacant during the commissioner’s out-of-term
holdover service, Governor Ige was authorized to exercise his
interim appointment power following the June 30, 2016 expiration
of Champley’s term, making his appointment of Gorak lawful. If
the PUC holdover provision precludes a vacancy, however, Gorak
could not be lawfully appointed to the position.
“The doctrine of ‘constitutional doubt,’ a
well-settled canon of statutory construction, counsels that
‘where a statute is susceptible of two constructions, by one of
which grave and doubtful constitutional questions arise and by
the other of which such questions are avoided, our duty is [to]
adopt the latter.’” In re Doe, 96 Hawai‘i 73, 81, 26 P.3d 562,
570 (2001) (quoting Jones v. United States, 529 U.S. 848, 857
(2000)). We therefore begin by considering the text and history
of the interim appointments clause and the role it plays within
the constitutional balance of power to determine whether an
interpretation of the holdover provisions that prevents a
vacancy from arising would be constitutionally permissible. We
(. . . continued)
Consequently, when Champley was appointed following his predecessor’s
resignation, his term was scheduled to expire six years from his
predecessor’s original appointment rather than six years from his own. No
party has argued that HRS § 26-34(c) is inconsistent with HRS § 269-2.
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then turn to the language, structure, and legislative history of
HRS §§ 26-34 and 269-2 to determine whether the holdover
provisions were in fact intended to prevent a vacancy from
arising.
A. The Holdover Provisions Would Be Constitutionally Suspect if
Interpreted to Preclude a Vacancy for Purposes of the Governor’s
Interim Appointment Power
1. By Its Terms, the Interim Appointment Power Is Self-Executing
and Not Subject to Statutory Limitations
The interim appointments clause of article V, section
6 of the Hawaii Constitution states in relevant part as follows:
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.
Notably, the clause does not contain the phrase “as provided by
law,” which is included in a number of other provisions in the
constitution that govern appointments. For example, article X,
section 2 states that “[t]he governor shall nominate and, by and
with the advice and consent of the senate, appoint the members
of the board of education, as provided by law.” (Emphasis
added.) Similarly, article X, section 6 provides that the
members of the Board of Regents of the University of Hawai‘i
“shall be nominated and, by and with the advice and consent of
the senate, appointed by the governor from pools of qualified
candidates presented to the governor by the candidate advisory
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council for the board of regents of the University of Hawaii, as
provided by law.” (Emphasis added.)
The omission is significant. The phrase “as provided
by law” indicates that, as long as it complies with the basic
text of the provision, the subject matter “may be dealt with by
the Legislature as it deems appropriate.” State v. Rodrigues,
63 Haw. 412, 415, 629 P.2d 1111, 1114 (1981) (quoting Agnew v.
Schneider, 253 N.W.2d 184, 187 (N.D. 1977)). Its absence in the
interim appointments clause suggests the constitution does not
contemplate a role for the legislature in prescribing the time
and manner in which the governor may make interim appointments.
This impression is strengthened by article XVI,
section 16 of the Hawai‘i Constitution, which requires this court
to interpret constitutional provisions to “be self-executing to
the fullest extent that their respective natures permit.” To
fulfill this mandate, we set forth the test for identifying a
self-executing constitutional provision in State v. Rodrigues,
63 Haw. at 414, 629 P.2d at 1113. Adopting the standard
articulated by the United States Supreme Court, we stated,
A constitutional provision may be said to be self-executing
if it supplies a sufficient rule by means of which the
right given may be enjoyed and protected, or the duty
imposed may be enforced; and it is not self-executing when
it merely indicates principles, without laying down rules
by means of which those principles may be given the force
of law.
Id. (quoting Davis v. Burke, 179 U.S. 399, 403 (1900)).
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Under this test, it is clear that the governor’s
interim appointment power is self-executing. Rather than laying
out only general principles and leaving the details to be
defined through legislation, the clause outlines definite
standards as to when and how the governor may utilize the power.
There is thus no doubt that the interim appointment clause
carries the force of law on its own accord, and it is axiomatic
that a self-executing constitutional provision may not be
curtailed or qualified by statute. See State v. Handa, 66 Haw.
82, 84, 657 P.2d 464, 466 (1983) (“[T]he constitution as the
highest . . . expression of the law-making power, operates to
repeal or supersede . . . all statutes that are . . .
inconsistent with the full operation of its provisions.” (first
alteration in original) (quoting 16 C.J.S. Constitutional Law §
43, at 135)). In sum, the text of the constitution indicates
that the governor’s constitutional authority to make interim
appointments was meant to supersede any restrictions that the
legislature might attempt to place upon it.16
16
The dissent contends that the self-executing nature of the
interim appointments provision is irrelevant because “the provision does not
conflict with any statute.” Dissent at 18. Holdover provisions that
preclude vacancies do not conflict with the governor’s interim appointment
power, the dissent argues, because “[t]aken to its logical end, this argument
cannot support a functioning government because any otherwise-valid law that
bears on appointing an officer would in some small way necessarily limit the
interim appointments clause by causing the position not to be vacant.” Id.
The dissent’s contention is clearly incorrect. The logical end of our
position is that the legislature cannot prevent a vacancy from arising at the
(continued . . .)
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2. The Constitutional History Demonstrates a Choice by the
Delegates to Utilize Interim Appointments Instead of Holdover
Service
To the extent the interim appointments clause is
ambiguous as to its interaction with a statutory holdover
provision, “extrinsic aids may be examined to determine the
intent of the framers and the people adopting the proposed
amendment.” State v. Kahlbaun, 64 Haw. 197, 201-02, 638 P.2d
309, 314 (1981). The committee reports and floor debates of the
1950 constitutional convention during which the clause was
drafted make no specific mention of the governor’s interim
appointment power. But a closer examination of the proposals
bearing on executive power indicates that the delegates
specifically considered and rejected holdover provisions similar
to the ones now appearing in HRS §§ 26-34 and 269-2.
Two proposals bearing on the issue were submitted to
the Committee on Executive Powers and Functions when it was
(. . . continued)
end of a legislatively prescribed term. The power of the legislature, for
example, to set the dates of terms of office, prescribe the length and number
of terms, and provide for the removal of PUC commissioners is unaffected by
our conclusion that the legislature cannot preclude vacancies from arising
outright, which would substantially constrict the interim appointment power
granted by article V, section 6. Whether, and to what extent, the
legislature’s otherwise lawful authority could constitutionally restrict the
governor’s interim appointment power is a grave constitutional question.
Because the dissent’s interpretation of HRS § 269-2 presents that question,
and our construction avoids it, “our duty is [to] adopt the latter.” In re
Doe, 96 Hawai‘i 73, 81, 26 P.3d 562, 570 (2001) (quoting Jones v. United
States, 529 U.S. 848, 857 (2000)). This conclusion is further militated by
the absence of any legislative intent that HRS § 269-2 restricts the
governor’s interim appointment power. See infra Part III.B.2.
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drafting the committee proposal that would eventually become
article V, section 6 of the Hawai‘i Constitution. The first,
proposal 22, was entitled “Appointment, Removal and Tenure of
Department Heads and High Governmental Officers.” Proposal No.
22 (April 14, 1950) at 1, in 1950 Constitutional Convention
materials, Box 12 (on file with the Hawaii State Archives). The
proposal provided that
the members of all boards and commissions of a public
character that may be created by law . . . . shall be
appointed for terms to expire with the term of the
governor, and until their successors are appointed and
qualified; provided, that the terms of members of boards
and commissions may otherwise expire if so provided by law.
Id. at 1-2 (emphasis added). Similarly, proposal 176, entitled
“A Proposal Relating to Power of Appointment to Fill Vacancies -
Tenure of Appointees,” stated, “The Governor shall fill all
vacancies in public offices unless otherwise provided by this
constitution and law, and his appointees shall serve until their
successors are duly elected or appointed and qualified.”
Proposal No. 176 (May 20, 1950) at 1, in 1950 Constitutional
Convention materials, Box 12 (emphasis added) (on file with the
Hawaii State Archives). But the Committee on Executive Powers
and Functions rejected the language from both proposals, and no
holdover provision was included in the committee proposal that
was ultimately reported to the Committee on the Whole. See
Stand. Comm. Rep. No. 67, 1 Proceedings of the Constitutional
Convention of Hawaii of 1950, at 215-22 (1960) (I Proceedings)
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(containing copy of measure as referred by the Committee on
Executive Powers and Functions to the Committee on the Whole).
Instead, the committee proposal included the interim
appointments clause as it now appears in article V, section 6 of
the Hawai‘i Constitution. This suggests a conscious decision on
the part of the framers that the composition of a commission
following the expiration of a commissioner’s term should be
determined by the governor when the senate is not in session--
and not by the previous office holder’s decision as to whether
or not to holdover. And while the legislature may certainly act
to ensure these commissions are able to fulfill their
administrative functions when the governor has not moved to make
such an appointment, the framers do not appear to have intended
that the legislature could deprive the governor of this core
power.
The dissent maintains that the framers’ rejection of
the holdover provision does not demonstrate a preference for
interim appointments, but instead indicates that the framers
intended to leave the application of a holdover provision “open
for legislative treatment as future conditions may require.”
Dissent at 9 (quoting Stand. Comm. Rep. No. 67 in I Proceedings,
at 215). However, the language quoted by the dissent does not
relate directly to either interim appointments or holdover
provisions. Instead, it is a general statement that certain
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specified matters should be left open for legislative treatment
as required by future conditions.17 See Stand. Comm. Rep. No. 67
in I Proceedings, at 215. Indeed, the very next sentence of
Committee Report No. 67, after the passage quoted by the
dissent, states the following:
Your Committee believes that it is only through such
delegation to the Legislature that the flexibility
necessary to keep government in step with economic and
social development is possible.
Id. (emphasis added). Thus, the drafters of the Committee
Report expressly indicated that subjects left “open for
legislative treatment” were those that had been delegated to the
legislature. Id.
For example, the Committee stated that “[i]n case of a
tie vote or a contested election, the selection of a Governor
shall be determined in such manner as may be provided by law.”
Id. at 216 (emphasis added). In regard to the Lieutenant
Governor, the Committee stated that the Lieutenant Governor
would “perform such duties as may be prescribed by law.” Id.
(emphasis added). The Committee also recommended that the
“Legislature by law allocate the usual duties of the Secretary
[of State] . . . to the office of Lieutenant Governor.” Id. at
17
It is noted that the Committee Report relied upon by the dissent
also states the following: “The fundamental principle upon which your
Committee Proposal was drafted is that of concentration of executive power in
the Governor, which would give the best government.” Stand. Comm. Rep. No.
67 in I Proceedings, at 215.
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216-17 (emphasis added). As related to the principal
departments in the executive branch, the Committee stated that
“the number . . . shall be limited to not more than 20 and the
Legislature shall be required to allocate the existing
departments, boards and other agencies among and within the 20 .
. . departments.” Id. at 217 (emphasis added). In regard to
the leadership of these departments, the Committee recommended
that “[e]ach . . . department shall be headed by a single
executive unless otherwise provided by law.” Id. (emphasis
added). Significantly, the Committee recommended that the
members of quasi-judicial or quasi-legislative bodies, such as
the PUC, should be protected from removal and that “restrictions
on removal should be provided by law.” Id. at 217.18 These
18
The dissent maintains that because article V, section 6 delegates
the manner of removal of PUC commissioners to the legislature, the
legislature is empowered to prevent a vacancy from arising on the PUC.
Dissent at 5-6. Thus, the dissent argues, the phrase “[e]ach member shall
hold office until the member’s successor is appointed and qualified” in HRS
§ 269-2(a) is in fact a restriction on the governor’s ability to remove a
holdover PUC commissioner. Id. at 6-7; HRS § 269-2(a). First, this case
turns on whether the position was “vacant” for the purposes of the interim
appointment power, not on the governor’s ability to remove PUC commissioners,
which the constitution specifies in article V, section 6 shall be provided by
law unless otherwise prescribed by the constitution.
Second, the dissent’s conclusion that the phrase “shall hold
office until the member’s successor is appointed and qualified” bears on
removal is without basis and inconsistent with the manner in which HRS
§§ 269-2 and 26-34 interrelate. HRS § 269-2(a) provides that PUC
commissioners
shall be appointed in the manner prescribed in section 26-
34, except as otherwise provided in this section. . . .
Section 26-34 shall not apply insofar as it relates to the
number of terms and consecutive number of years a member
(continued . . .)
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examples demonstrate that when the Committee intended to leave a
subject open for legislative treatment, it stated as much.
Moreover, all of these express delegations of
authority to the legislature are embodied in article V of the
Hawaii Constitution. Not part of the Committee Report, and not
included in article V, is a delegation of authority to the
legislature that it may provide by law restrictions on the
governor’s interim appointment power. Thus, it appears clear
that the composition of a commission following the expiration of
a commissioner’s term should be determined by the governor when
the senate is not in session as this authority was not “provided
by law” to the legislature by article V.
3. Interpreting HRS §§ 269-2 and 26-34 To Be Subject to the
Interim Appointment Authority Preserves the Constitutional
Balance of Power
Under longstanding canons of statutory construction,
“if one construction would make it possible for a branch of
(. . . continued)
can serve on the commission; provided that no member shall
serve more than twelve consecutive years.
HRS § 269-2(a) (emphasis added).
Notably absent from the listed derogations is removal. This is because
the removal of PUC commissioners is governed by HRS § 26-34(d) and not by HRS
§ 269-2(a). See HRS § 26-34(d) (“The governor may remove or suspend for
cause any member of any board or commission after due notice and public
hearing.”). To read HRS § 269-2(a) as bearing on removal is contrary to the
legislature’s expressed intent to have HRS § 26-34(d) govern the removal of
PUC commissioners.
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government substantially to enhance its power in relation to
another, while the opposite construction would not have such an
effect, the principle of checks and balances would be better
served by a choice of the latter interpretation.” Staebler v.
Carter, 464 F. Supp. 585, 599–600 (D.D.C. 1979). From a
functional standpoint, permitting the legislature to preclude a
vacancy from arising upon the expiration of a PUC commissioner’s
term would represent a significant shift in the balance of power
between the branches of government.
If, upon the expiration of a PUC commissioner’s term,
the governor is permitted to make an interim appointment that
the legislature disapproves of, the legislature maintains the
option of holding a special session in order to swiftly remove
the interim office holder by rejecting the temporary appointment
or simply adjourning without confirming it. See Haw. Const.
art. V, § 6 (“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.” (emphasis added)); see also Sierra Club v. Castle &
Cooke Homes Hawai‘i, Inc., 132 Hawai‘i 184, 196, 320 P.3d 849,
861 (2013) (rejecting an interpretation of a statutory holdover
provision that would allow a previously appointed commissioner
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to remain in office after the senate has declined to confirm the
member’s nomination).
By contrast, were we to allow the legislature to
preclude a vacancy from arising upon the conclusion of a
commissioner’s term, the governor would be without recourse to
replace a holdover commissioner if the legislature refuses to
confirm a new appointment. A holdover whom the governor does
not wish to be in office could therefore serve until at least
the end of the second regular legislative session after the
expiration of the commissioner’s term, and possibly for a full
second six-year term.19
This court has stated that “the subject of appointment
of members to boards and commission must necessarily be
considered to be the joint responsibility of the governor and
senate.” Life of the Land v. Burns, 59 Haw. 244, 251, 580 P.2d
405, 410 (1978). Permitting the legislature to prevent the
governor from exercising a constitutional prerogative would
represent a substantial diminishment in the executive power
19
HRS § 26-34(b), which applies to the PUC unless HRS § 269-2
provides otherwise, states that “a holdover member shall not hold office
beyond the end of the second regular legislative session following the
expiration of the member’s term of office.” HRS § 269-2(a) states that
“Section 26-34 shall not apply insofar as it relates to the number of terms
and consecutive number of years a member can serve on the commission;
provided that no member shall serve more than twelve consecutive years.” We
need not now decide whether the limitation on holdover service included in
HRS § 26-34(b) is consistent with HRS § 269-2 and thus would be applicable to
PUC commissioners.
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granted by the Hawai‘i Constitution, and it is questionable
whether our constitution would allow such a rebalancing.
Contrary to the foregoing, the dissent asserts that
prohibiting the legislature from precluding a vacancy from
arising unduly rebalances power in favor of the governor. See
Dissent at 21-22. This is because, the dissent argues, terms of
office for PUC commissioners always expire when the senate is
not in session. Id. at 22. The dissent hypothesizes that the
governor could “refrain from nominating individuals for senate
confirmation while the senate is in session and utilize the
interim appointment power instead, wholly depriving the senate
of a role in the appointment process.” Id. First, this
ostensible threat is not a product of our interpretation. As
the dissent acknowledges, at the very least a holdover member
may not remain in office “beyond the end of the second regular
legislative session following the expiration of the member’s
term of office.” Id. at 22 n.14 (emphasis added) (quoting HRS
§ 26-34(b)). And, as the dissent also acknowledges, “[o]nce
that period expires, a vacancy in office is created allowing the
governor to utilize the interim appointment power if the senate
is not in session pursuant to article V, section 6.” Id. at 22-
23 n.14. Thus, the holdover period for PUC commissioners, like
the regular term of office, would always expire while the senate
is not in session. Accordingly, even under the dissent’s
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position, the governor could “deprive the senate of a role in
the appointment process.”20
However, the threat posited by the dissent is
illusory. As discussed above, the legislature maintains the
option of holding a special session in order to remove the
interim office holder. The legislature may remove the interim
appointee by rejecting the temporary appointment or by
adjourning the special session without confirming the appointee.
Haw. Const. art. V, § 6. Rather than revealing a rebalancing of
power, the dissent’s hypothetical merely demonstrates how the
checks and balances embodied in our constitution operate between
the branches of government. Furthermore, the expiration of the
PUC commissioner’s term is set by statute. See HRS § 26-34
(“Unless otherwise provided by law, each term shall commence on
July 1 and expire on June 30.”). If the legislature determines
that the expiration of the term outside of the legislative
session leads to executive overreach, it may simply change when
the term expires. Haw. Const. art. V, § 6 (“The term of office
20
Additionally, this contended “threat” is not unique to holdovers.
If the interim appointment power was limited to vacancies caused by death,
incapacity, resignation, or removal that occurred outside of the legislative
session and the governor’s interim appointee is not confirmed by the senate,
the appointee’s commission would expire at the end of the next session of the
senate. Haw. Const. art. V, § 6 (“[An interim appointee’s] commission . . .
shall expire, unless such appointment is confirmed, at the end of the next
session of the senate.”). Thus, even the most constricted view of the
interim appointment power poses the purported threat to the balance of power
that the dissent surmises.
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and removal of [board, commission, or other body] members shall
be as provided by law.”).
B. The Legislative History and Structure of HRS §§ 26-34 and
269-2 Indicate Holdover Commissioners Serve in an Acting
Capacity that Does Not Preclude a Vacancy
We now turn to HRS §§ 26-34 and 269-2 to determine
whether the legislature intended the holdover provisions to
prevent the governor from exercising the interim appointment
power upon the expiration of a commissioner’s term--a result
that, as discussed, would be constitutionally suspect. Based on
the structure and legislative history of the statutes, we
conclude that holdover members of commissions serve in an acting
capacity, leaving the office of in-term commissioner vacant for
purposes of the governor’s interim appointment power.
1. The Language and Structure of Statutes Governing Board
Appointments Suggest Holdovers Serve in an Acting Capacity
There are textual and structural indications in the
statutes governing the appointment of PUC commissioners that
holdover members serve in an acting capacity that does not
preclude a vacancy. HRS § 269-2(a) specifies that a PUC
commissioner “shall hold office until the member’s successor is
appointed and qualified.”21 Notably, the provision makes no
21
Although this court has stated that “where a statute contains the
word ‘shall,’ the provision generally will be construed as mandatory,”
Malahoff v. Saito, 111 Hawai‘i 168, 191, 140 P.3d 401, 424 (2006), we have
also long held that “this court may depart from a plain reading of a statute
(continued . . .)
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mention of senate confirmation, but instead conditions the end
of a holdover members service on “appoint[ment] and
qualif[ication].” This is significant because appointment
occurs both in the normal senate confirmation process and when
the interim appointment power is exercised. See Haw. Const.
art. V, § 6 (“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 . . .” (emphasis added); id. (“The
governor shall nominate and, by and with the advice and consent
of the senate, appoint all officers for whose election or
appointment provision is not otherwise provided for by this
constitution or by law.” (emphasis added)).
By contrast, the holdover provisions applicable to
members of the Board of Education and the Board of Regents for
the University of Hawai‘i--for which article X, sections 2 and 6
specify that the governor’s appointment authority shall be “as
provided by law”--both clearly state that “[e]very member may
(. . . continued)
where a literal interpretation would lead to absurd and/or unjust results.”
Iddings v. Mee–Lee, 82 Hawai‘i 1, 15, 919 P.2d 263, 277 (1996). It is self-
evident that a commissioner may not be made to hold office against the
commissioner’s will, see U.S. Const. amend. XIII, and we do not believe the
legislature would provide a holdover commissioner with more protections from
removal than an in-term commissioner.
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serve beyond the expiration date of the member’s term of
appointment until the member’s successor has been appointed by
the governor and confirmed by the senate.” HRS §§ 302A-123(d)
(Supp. 2018), 304A-104(a) (2007) (emphasis added).22 That the
legislature chose to use the term “appointed” rather than
“confirmed” in HRS § 269-2(a) suggests a holdover’s service may
be ended through either a full-term appointment or an interim
appointment--the latter of which would occur only if the office
of in-term PUC commissioner is vacant upon the expiration of a
commissioner’s term. See Agustin v. Dan Ostrow Const. Co., 64
Haw. 80, 83, 636 P.2d 1348, 1351 (“[D]ifferent words in a
statute are presumed to have different meanings.”). Thus, the
text of HRS § 269-2(a)’s holdover provision suggests that a
holdover commissioner does not occupy the office of in-term
commissioner, but rather serves in an acting capacity that does
not prevent a vacancy from arising.
The dissent contends that our interpretation of the
word “qualified” in HRS § 269-2(a) should encompass senate
confirmation. Dissent at 19. According to the dissent, our
interpretation should be controlled by the language of the
Organic Act, which established the Territory of Hawaii. Id.;
22
HRS § 304A-104(a) was amended in 2019. Act 172 (June 27, 2019).
These amendments do not affect our analysis.
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Organic Act of April 30, 1900, ch. 339, 31 Stat. 141. The
Organic Act uses “appointed and qualified” to mean appointed by
the governor and confirmed by the senate, asserts the dissent.
Dissent at 19-20. Thus, the dissent theorizes that the Act was
the origin of the language used in the PUC holdover provision
and the general holdover provision, and it therefore concludes
that the language from the Organic Act should control. Id. at
10-11.
Notwithstanding the uncertainty as to the origins of
the language used in HRS §§ 269-2(a) or 26-34, upon inspection,
there is no indication that the language of the Organic Act
conflates “qualification” with “confirmation.” See 31 Stat.
141, 156-157. Rather, within the very same section referenced
by the dissent, the Organic Act uses the term “confirmed” in one
sentence and the term “qualified” in another.23 Id. There is no
23
Section 80 of the Organic Act, which governs the appointment,
removal, tenure, and salaries of officers states in relevant part as follows:
[T]he governor shall nominate and, by and with the advice
and consent of the senate of the Territory of Hawaii,
appoint the attorney-general, treasurer, . . . and any
other boards of a public character that may be created by
law; and he may make such appointments when the senate is
not in session by granting commissions, which shall, unless
such appointments are confirmed, expire at the end of the
next session of the senate. He may, by and with the advice
and consent of the senate of the Territory of Hawaii,
remove from office any of such officers. All such officers
shall hold office for four years and until their successors
are appointed and qualified, unless sooner removed, except
the commissioners of public instruction and the members of
(continued . . .)
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evidence overcoming the presumption that Congress intended these
“different words . . . to have different meanings.”24 Agustin,
64 Haw. at 83, 636 P.2d at 1351.
Additionally, with the exception of HRS § 26-34(c)’s
procedure for filling vacancies that arise from a death,
resignation, or removal that takes place during a commissioner’s
term, neither HRS § 26-34 nor HRS § 269-2 explicitly specifies
when the governor shall appoint new board and commission
members. The statutes state that board members shall be
appointed to terms of a specific number of years, however,
implying that members may be replaced following the expiration
of this period.25 Some qualitative difference exists, then,
(. . . continued)
said boards, whose terms of office shall be as provided by
the laws of the Territory of Hawaii.
31 Stat. 141, 156 (emphases added).
24
Morita, similar to the dissent, argues that the term “qualified”
in HRS § 269-2(a) means fulfilling all legal requirements to take office,
which she maintains include senate confirmation. Senate confirmation is not
a legal requirement for an interim appointee to take office, however. As
stated, when the interim appointment power is used, an individual takes
office before senate confirmation occurs. Thus, an official is qualified
once an interim appointment has occurred and the oath of office has been
administered provided the individual satisfies all other requirements for the
office. See, e.g., HRS § 269-2(a) (requiring that PUC commissioners have
“experience in accounting, business, engineering, government, finance, law,
or other similar fields” and prohibiting commissioners from holding other
office or employment and from owning stock in a public utility).
25
As related above, HRS § 26-34(a) states in relevant part, “Unless
otherwise provided by this chapter or by law hereafter enacted, the terms of
the members shall be for four years[.]” HRS § 269-2(a) provides in relevant
part, “All members shall be appointed for terms of six years each[.]”
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between a member’s in-term service--during which the member
cannot be replaced absent death, resignation, or removal from
office--and a member’s out-of-term holdover service, during
which a successor may be appointed. The distinction may be
attributed to holdover members serving in an acting capacity,
leaving the office of the in-term commission member vacant and
available for appointment. This reading is further supported by
the legislative history that is available from the enactment of
the holdover provisions appearing in HRS §§ 26-34(b) and 269-
2(a).
2. The “Acting Capacity” Interpretation of HRS §§ 269-2 and
26-34 is Consistent with Indications of Legislative Intent
Legislative history gives us limited insight into the
intended interaction of the statutory holdover provisions and
the governor’s interim appointment power. The standing
committee and conference reports from when the legislature
enacted the 1976 legislation that added the holdover provision
for the PUC to HRS § 269-2(a) made no mention of the clause as
it relates to interim appointments (nor indeed did it reference
the holdover provision at all). See Conf. Comm. Rep. No. 46, in
1976 Senate Journal, at 895-96, 1976 House Journal, at 1155-56;
S. Stand. Comm. Rep. No. 513, in 1976 Senate Journal, at 1104-
06; S. Stand. Comm. Rep. No. 654, in 1976 Senate Journal, at
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1172-74; H. Stand. Comm. Rep. No. 334, in 1976 House Journal, at
1424-26.
However, the 1984 committee reports from when the
legislature added the similar holdover provision applicable to
all members of commissions or boards to HRS § 26-34 indicate
that the addition was made for largely administrative purposes.
See S. Stand. Comm. Rep. No. 1725, in 1984 Senate Journal, at
1087; H. Stand. Comm. Rep. No. 604, in 1984 House Journal, at
1148. The House of Representatives standing committee report
states that the change was based on testimony from the State
Planning Council on Developmental Disabilities indicating that
logistical problems arose when less than a full complement of
commission members were available. H. Stand. Comm. Rep. No.
604, in 1984 House Journal, at 1148. The apparent implication
of the testimony is that certain commissions experienced
difficulties fulfilling their duties when a vacancy occurred and
the governor did not exercise appointment authority, as such
problems would not arise when the governor acted promptly to
fill a vacancy. This would indicate that the holdover
provisions are meant to address situations in which the governor
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has not acted to fill a vacancy, and they are not meant to
prevent the governor from making such an appointment.26
There is no suggestion in the history of the two
statutes that the legislature intended the 1976 or 1982
legislation to limit the governor’s interim appointment power,
and, indeed, it is doubtful that the governor would have signed
the respective bills if the governor believed the statutes
diminished executive authority in this regard. This court will
not read such a sweeping rebalancing of power in what appears to
be a minor administrative accommodation. See Whitman v. Am.
Trucking Assocs., 531 U.S. 457, 468 (2001) (noting that
legislatures do not “hide elephants in mouseholes”).
Indeed, when considering a nearly directly analogous
situation, the U.S. Court of Appeals for the D.C. Circuit
26
The dissent claims this infringement of the governor’s interim
appoint power was precisely the purpose of the holdover provisions and cites
the governor’s practice of nominating prospective board and commission
members for service during the legislative sessions preceding the
commencement of their terms in office as evidence that holdover provisions
preclude the governor from making an interim appointment. Dissent at 8. The
fact that the governor generally nominates prospective board and commission
members in this manner does not limit or define the governor’s interim
appointment power. Indeed, the governor has duly exercised the interim
appointment power to fill a position after the natural expiration of the
preceding holder’s term in various circumstances. See Press Release, Hawaii
Governor’s Office, Governor Appoints 3 Members to Board of Land and Natural
Resources, (July 11, 2014) https://dlnr.hawaii.gov/wp-content/uploads
/2012/12/GOV-NR-BLNR-Appointments-7-11-14.pdf [https://perma.cc/69DL-TVWF];
Press Release, Hawaii Governor’s Office, Governor appoints Edmund (Fred) Hyun
as interim chair of the Hawaii Paroling Authority, (Sept. 6, 2016)
https://governor.hawaii.gov/newsroom/governors-office-news-release-governor-
appoints-edmund-fred-hyun-as-interim-chair-of-the-hawaii-paroling-authority/
[https://perma.cc/3U64-WDXF].
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declined to adopt such a reading of a statutory holdover
provision in the organic act of the National Credit Union
Administration (NCUA) because the legislative history suggested
the clause was intended for the same administrative purposes
involved here. Swan v. Clinton, 100 F.3d 973, 985–86 (D.C. Cir.
1996). In concluding that it was unnecessary to determine
whether a vacancy existed because the holdover board member no
longer enjoyed protections against removal by the president
following the expiration of the member’s enumerated term, the
D.C. Circuit relied in part on the lack of obvious legislative
intent to curtail the president’s constitutional authority:
Removal protection for holdover members might be necessary
if the purpose of the holdover clause were not just to
prevent gaps in agency leadership generally, but more
specifically to prevent gaps from occurring during the time
it takes the Senate to confirm a successor--in other words,
if the purpose of the holdover clause was to prevent a
successor from being appointed via the recess appointment
clause. But there is no indication in the language of the
NCUA statute or the legislative history of the 1978
amendments that Congress intended the holdover clause to
serve any such purpose of precluding recess appointments.
Cf. Staebler [v. Carter], 464 F.Supp. [585,] 592 [(D.D.C.
1979)] (although several congressional reports describe
holdover clauses as allowing the Senate an opportunity to
confirm successor officials, “in none of these reports is
there any indication that the Committees considered, much
less that they intended to rule out, the constitutionally-
prescribed recess appointment option”). And we are
unwilling to infer that the NCUA statute precludes the
President from exercising a constitutionally granted power
absent clear evidence that this was Congress’ intent.
Id. (emphases added).
Similarly, in Staebler v. Carter, the U.S. District
Court for the District of Columbia considered whether a holdover
provision of the Federal Elections Campaign Act, 2 U.S.C.
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§ 437c(a)(2)(B), prevented the president from making an
appointment pursuant to the constitutional recess appointment
power following the expiration of a federal election
commissioner’s enumerated term. 464 F. Supp. at 588. As here,
the plaintiff argued that a vacancy did not arise upon the
expiration of the enumerated term and that a replacement could
be “appointed only through nomination by the President and
confirmation by the Senate.” Id. at 589. In rejecting this
argument, the court observed that
there is no basis either in the language of the statute or
in its legislative history to support the conclusion that
Congress meant to rein in the President in such an
unprecedented manner. In the absence of a clearly-
expressed legislative intent, the Court will not speculate
that the Congress sought to achieve a result which would be
both unusual and probably beyond its constitutional power.
Id. at 591. Thus, the district court found no reason to
interpret the holdover statute in a way that precluded a
vacancy--which would result in serious questions about its
constitutionality--because the legislature did not evince any
manifest intention to limit the executive’s interim appointment
authority. See also id. at 592 (“The Court finds it difficult
to believe that, had the Congress intended to take the
significant step of attempting to curtail the President’s
constitutional recess appointment power, or even to legislate in
the area of that power, it would not have considered the matter
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with more deliberation or failed to declare its purpose with
greater directness and precision.”).
Just as in Swan and Staebler, here “there is no
indication in the language . . . or the legislative history” of
HRS § 269-2(a) that the legislature “intended the holdover
clause to serve any such purpose of precluding recess
appointments.” Swan, 100 F.3d at 985–86. This court is
likewise “unwilling to infer that the . . . statute precludes
the [governor] from exercising a constitutionally granted power
absent clear evidence that this was [the legislature’s]
intent.”27 Id.
IV. CONCLUSION
In sum, the language, structure, and legislative
history of the holdover provisions in HRS §§ 26-34(b) and 269-
2(a) do not evince an intention to limit the governor’s
authority to make interim appointments upon the expiration of a
PUC commisioner’s term if the senate is not in session, and the
statutes would be highly suspect as a constitutional matter if
they sought to achieve this outcome. We therefore hold that a
27
It is noted that the Senate unanimously confirmed Gorak’s
successor, James P. Griffin, who was also appointed by Governor Ige pursuant
to the interim appointment power. If no vacancy existed at the time Governor
Ige appointed Gorak, it would follow that no vacancy existed at the time
Governor Ige appointed Griffin because Champley, Gorak’s predecessor, neither
relinquished office nor reached either of the statutory limits that may be
applicable to the length of his holdover service. See supra note 19. It is
also noted that the Senate did not participate in this appeal.
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vacancy existed upon the expiration of Champley’s term as PUC
commissioner, and Governor Ige was thus entitled to appoint
Gorak on an interim basis pursuant to article V, section 6 of
the Hawai‘i Constitution.28 Accordingly, the judgment of the
circuit court is affirmed.
Harold Bronstein /s/ Paula A. Nakayama
for appellant
/s/ Sabrina S. McKenna
Deirdre Marie-Iha
for appellee /s/ Richard W. Pollack
/s/ Michael D. Wilson
28
Given this disposition, we need not address the circuit court’s
dismissal of Morita’s claim for declaratory relief based on a lack of
standing.
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