CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-11-0000625; CIV. NO. 10-1-2424-11)
Robert D. Harris, for petitioner
Marissa H.I. Luning, for respondent Land Use Commission of the State of Hawai'i
Benjamin M. Matsubara, Curtis T. Tabata, and Wyeth M. Matsubara, for respondent Castle & Cooke Homes Hawai'i, Inc.
NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ., WITH RECKTENWALD, C.J., CONCURRING AND DISSENTING SEPARATELY
This case requires us to consider whether the Hawai'i State Senate's express rejection of a board member's nomination for a second term effectively disqualifies the member from continuing to serve on the board and from voting on matters of critical importance to the community.
On April 26, 2010, the Senate rejected Duane Kanuha's (Kanuha) nomination for a second term as a commissioner on the Respondent/Appellee-Appellant state Land Use Commission (LUC), based in part on the finding that Kanuha lacked the requisite knowledge and experience to qualify as the designated member with expertise on Hawaiian land usage. More than four months after the Senate's rejection, Kanuha continued to participate in the LUCs consideration of a significant development project involving the reclassification of agricultural land for urban use. At that time, the Petitioner/Appellant-Appellee Sierra Club (Sierra Club) filed an action to disqualify Kanuha from serving on the LUC as of the date of his rejection and to invalidate any actions Kanuha had taken with respect to the development project. The LUC denied the action and, that same day, deliberated on and voted to approve the subject reclassification. Despite the Senate's finding that he was unqualified to continue serving as an LUC member, Kanuha participated in the LUC s vote and the LUCs subsequent vote to approve the written findings, conclusions, and decision and order approving the project. The decision and order would not have been approved without Kanuha's vote.
For the reasons set forth herein, we conclude that in light of the Senate's rejection of Kanuha's nomination for a second term, Kanuha was not a valid holdover member of the LUC under Hawai'i Revised Statutes (HRS) § 26-34 when he voted on the reclassification. Kanuha also did not qualify as a de facto member of the LUC given the Senate's express rejection of his nomination. Without Kanuha's disqualified vote, the LUC lacked the requisite number of votes to approve the reclassification. Accordingly, we reverse the judgment of the Intermediate Court of Appeals (ICA) and affirm the judgment of the Circuit Court of the First Circuit (circuit court).
Kanuha was nominated by the governor for a four-year term as a LUC commissioner on April 12, 2005. 2005 Senate Journal, at 586 (Governor's Message 630). His nomination was confirmed by the Senate on April 27, 2005. 2005 Senate Journal, at 770.
On July 3, 2007, Respondent/Appellee-Appellant Castle & Cooke Homes Hawai'i, Inc. (Castle & Cooke) filed a Petition for Land Use District Boundary Amendment with the LUC. Subsequently on May 16, 2008, Castle & Cooke filed an Amended Petition for Land Use District Boundary Amendment Verification (Reclassification Petition),  seeking to amend the land use district boundary to reclassify approximately 767 acres in Waipi'o and Waiawa, O'ahu, from an agricultural to urban district. The petition involved two geographic areas referred to as Koa Ridge Makai, consisting of approximately 576.435 acres of land in Waipio, and Castle & Cooke Waiawa, consisting of approximately 191.214 acres of land in Waiawa.
The petition was filed pursuant to HRS § 205-4 (governing district boundary amendments to land areas greater than fifteen acres) and Hawai'i Administrative Rules (HAR) § 15-15 (governing LUC rules). The boundary amendment and reclassification was requested as part of a proposal for the two-phase development of 5, 000 residential units, mixed-use village center, hotel, medical center, commercial properties, light industrial, elementary schools, parks, churches, recreation centers, open space, and roadways. The development was expected to span more than ten years, with Koa Ridge Makai projected to be completed by 2020 and Castle & Cooke Waiawa projected to be completed by 2024.
The LUC held several evidentiary hearings on the Reclassification Petition, during which it received numerous oral and written testimonies from the public, both in support of and in opposition to the Project.
While the LUC was still in the process of considering the Reclassification Petition, Kanuha's first term expired on June 30, 2009. See 2005 Senate Journal, at 586 (Governor's Message 630). He continued to serve as a LUC commissioner as a holdover member.
On December 4, 2009, the LUC voted to approve the Sierra Club's petition to intervene in the matter.
On March 3, 2010, the governor nominated Kanuha to serve a second term as a LUC commissioner. 2010 Senate Journal, at 283 (Governor's Message 338). The Water, Land, Agriculture, and Hawaiian Affairs committee prepared a report on Kanuha's nomination. S. Stand. Comm. Rep. No. 3208, 2010 Senate Journal, at 1332. The committee stated that Kanuha "is presently a member of the [LUC], and is the designated member with substantial experience or expertise in traditional Hawaiian land usage and knowledge of cultural practices." Id. However, the committee found that Kanuha had "limited experience with traditional Hawaiian land usage and knowledge." Id.
The committee further noted that it had been referred a total of four nominees to the LUC during the 2010 regular session, consisting of three current LUC commissioners and a fourth nominee, a "civil litigation attorney with no experience in land issues." Id.
Despite its concerns, the committee recommended that the Senate consent to Kanuha's nomination. Id.
On April 26, 2010, the full Senate considered Kanuha's nomination for a second term. 2010 Senate Journal, at 564. During the floor discussion on Kanuha' s nomination, Senators Hee and Hemmings spoke in opposition to the nomination, citing Kanuha's lack of expertise as a cultural practitioner. 2010 Senate Journal, at 561-64. Senator Hemmings in particular argued that the Senate had "no choice" but to reject Kanuha's nomination in order to comply with HRS § 205-1, which requires one member of the LUC to have "substantial experience or expertise in traditional Hawaiian land usage and knowledge of cultural land practices":
Through it all in all of the discussion, one clear factor cannot be denied: We passed a law requiring a cultural practitioner. The Governor has not followed it. This nominee, by his own admission, is not a cultural practitioner. We have no choice but to vote 'no' in order to stay compliant with the law as it is written and, more importantly, with the moral integrity of this body to stay consistent with what we voted for.
2010 Senate Journal, at 564 (emphasis added).
After completion of the floor discussion, the Senate voted to reject Kanuha's nomination by a vote of 14-9, with two Senators excused. Id.
More than four months after the Senate's vote to reject his nomination for a second term, Kanuha continued to participate in the LUCs consideration of the Reclassification Petition. On September 8, 2010, the Sierra Club filed a Motion to Disqualify Duane Kanuha, Nunc Pro Tunc, as of April 26, 2010 (Motion to Disqualify) with the LUC. The Sierra Club argued that Kanuha's capacity to be a holdover member under HRS § 2 6-34 was terminated on April 26, when the Senate declined to confirm his nomination for re-appointment. The Sierra Club requested that the LUC issue an order providing that Kanuha was not a commissioner as of April 26, 2010, and that any actions taken by Kanuha with respect to the Reclassification Petition since that time be deemed invalid.
The LUC convened for a meeting on September 23, 2010, to consider the Motion to Disqualify and the Reclassification Petition. The LUC voted 6-0 to deny the Motion to Disqualify, with Kanuha and one other commissioner abstaining from voting. Prior to voting on the Reclassification Petition, the LUC Chairman informed the commissioners that if a decision was reached that day, the LUC staff would be directed to draft findings of fact, conclusions of law, and a decision and order reflecting the decision. Those findings and conclusions would "be further deliberated" at the next hearing. The LUC then voted to approve the Reclassification Petition by a vote of 7-1, with Kanuha voting in favor of approval and one commissioner being excused.
The LUC convened again on October 15, 2010 to deliberate on the proposed "Findings of Fact, Conclusions of Law, Decision and Order" (Decision and Order) prepared by the staff following the prior meeting. The commissioners proposed and deliberated on multiple amendments to the conditions in the proposed order. The LUC, including Kanuha, voted 6-0 to approve the Decision and Order, as amended by the discussion during the meeting.
The Sierra Club filed an appeal with the circuit court on November 10, 2010, challenging the Decision and Order. The Sierra Club argued that Kanuha's capacity to continue serving as a commissioner was terminated by the Senate's rejection of his nomination for a second term. Thus, Kanuha should not have been permitted to vote on the Reclassification Petition, and the petition should have been denied because the October 15 LUC vote approving the Decision and Order failed to receive the requisite six affirmative votes. The Sierra Club asked the circuit court to stay the order granting the amendment of the land use district boundaries and to stay the appellees, including the LUC and Castle & Cooke, from taking further action pursuant to the order. The Sierra Club also asked the circuit court to reverse the Decision and Order and remand with instructions to the LUC to enter findings of fact, conclusions of law, and a decision and order denying the Reclassification Petition.
In response, the LUC argued that Kanuha was a valid holdover member under HRS § 26-34, as nothing in the statute or its legislative history indicated that the Senate's rejection of an incumbent's nomination for a second term has any effect on the incumbent's status as a holdover member. Alternatively, the LUC argued that even assuming Kanuha was disqualified from participating in the proceedings on the Reclassification Petition, the petition was still approved by the requisite six affirmative votes on September 23, 2010. The LUC contended that the subsequent vote to approve the Decision and Order was "an administrative or ministerial act, " which only required five affirmative votes pursuant to HRS § 92-15. Castle & Cooke reiterated many of the same arguments, maintaining that the Reclassification Petition was approved by more than six affirmative votes on September 23 and that Kanuha was a valid holdover under HRS § 26-34.
At the hearing on the appeal, the LUC argued for the first time that the circuit court lacked jurisdiction to review the LUC s approval of the Reclassification Petition because a quo warranto action to remove Kanuha was the exclusive remedy available to Sierra Club. The court set a briefing schedule with respect to the jurisdiction issue and proceeded to address the merits of the Sierra Club's appeal.
The circuit court held that Kanuha was disqualified from serving as a holdover member as a result of the Senate's rejection of his nomination for a second term. Under HRS § 26- 34, "a board member is appointed only after advice and consent of the Senate." After the Senate rejected Kanuha's nomination, "Kanuha could not be a board member pursuant to 26-34 (a), and thus, was disqualified as a holdover member under 26-34 (b)":
Under 26-34(b), a board member may continue office as a holdover member as long as that member is not disqualified from membership under subsection A. Under 2 6-34, subsection A, a board member is appointed only after advice and consent of the Senate. In this particular case, the Senate expressly rejected Mr. Kanuha's appointment for a second term on the LUC. Accordingly, Mr. Kanuha could not be a board member pursuant to 26-34(a), and thus, was disqualified as a holdover member under 26-34(b).
The court explained, "In essence, the legislative body rejected the continuance of Mr. Kanuha in his executive branch performance of duties, and it would seem contrary to that effect to allow a person who was affirmatively rejected to continue in his position."
The circuit court concluded that because Kanuha was disqualified, the Reclassification Petition did not receive six affirmative votes as required by HRS § 205-4. The court rejected the argument that the LUCs October 15, 2010 vote approving the Decision and Order was ministerial in nature. The court reasoned that the LUC "had the ability to not only approve, but also to deny or to modify a petition by imposing further conditions" at the October 15 meeting. The court noted that pursuant to HRS § 205-4(g), the Commission acts to approve, deny, or modify the petition by filing findings of fact and conclusions of law. Thus, "it is the actual filing of the actual findings of fact and conclusions of law that constitutes the final LUC action in approving a boundary amendment."
The court therefore concluded "that the ultimate decision to approve the boundary amendment petition took place on October 15th 2010, when the LUC voted to approve the adoption of the findings of fact and conclusions of law before filing." Without Kanuha's disqualified vote, the LUC lacked the six affirmative votes required to approve the boundary amendment. The court held that it would reverse the LUC s Decision and Order approving the Reclassification Petition, subject to briefing on the LUCs jurisdiction argument.
Subsequently on July 29, 2011, the circuit court entered an order denying the LUC s supplemental memorandum on jurisdiction and affirming its reversal of the LUCs Decision and Order. The court's final judgment was entered on October 5, 2011.
On appeal, the ICA reversed the circuit court's final judgment, holding that Kanuha was not disqualified from serving as a holdover member under HRS § 26-34(b) as a result of the Senate's rejection of his nomination for a second term. Sierra Club v. Castle & Cooke Homes Haw., Inc., 128 Hawai'i 375, 289 P.3d 1011 (App. 2012). The ICA determined that pursuant to the plain language of HRS § 26-34(a), "the sole disqualification [from holdover status] is that , no person shall be appointed consecutively to more than two terms as a member of the same board or commission; provided that membership on any board or commission shall not exceed eight consecutive years.'" 128 Hawai'i at 377, 289 P.3d at 1013 (brackets omitted).
The ICA therefore concluded that "Kanuha was not disqualified under HRS § 26-34(a) as he had not been a commissioner appointed consecutively to more than two terms as a member of LUC nor had his membership on LUC exceeded eight consecutive years." Id. The ICA held that the circuit court erred in holding that Kanuha was not a valid holdover based on the Senate's rejection of his nomination, and reversed the circuit court's judgment. Id. at 377-78, 289 P.3d at 1013-14. Given its disposition, the ICA did not address whether the circuit court erred in holding that six votes were necessary for the LUCs October 15, 2010 approval of the Decision and Order, although the ICA characterized the vote as "the ministerial act of approving LUC s decision as to form." Id. at 378 n.3, 289 P.3d at 1014 n.3.
In its application for writ of certiorari, the Sierra Club maintained that Kanuha was statutorily disqualified from voting on the Reclassification Petition under HRS § 26-34 because he failed to receive the advice and consent of the Senate for his second term. The Sierra Club argued that "[w]hen read within the entire framework of § 26-43, the disqualifying criteria logically include[s]" the member's failure to receive the Senate's advice and consent for reappointment. The Sierra Club further argued that the ICA's narrow interpretation of the term "disqualified" to only disqualify members who served for two terms or eight consecutive years has the effect of undermining the Senate's advice and consent power under article V, section 6 of the Hawai'i Constitution.
Pursuant to HRS § 205-1 (Supp. 2010), the LUC consists of nine members who "shall be appointed in the manner and serve for the term set forth in section 26-34." Six affirmative votes are required to approve any district boundary amendment under HRS § 205-1, as well as under HRS § 205-4, which applies to district boundary amendments involving land areas greater than fifteen acres.
HRS § 26-34 (2009), entitled "Selection and terms of members of boards and commissions, " governs the process by which an individual is qualified to serve as a commissioner. The statute provides that members of a commission "shall be nominated and, by and with the advice and consent of the senate, appointed by the governor":
Selection and terms of members of boards and commissions.
(a) The 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. Unless otherwise provided by this chapter or by law hereafter enacted, the terms of the members shall be for four years; provided that the governor may reduce the terms of those initially appointed so as to provide, as nearly as can be, for the expiration of an equal number of terms at intervals of one year for each board and commission. Unless otherwise provided by law, each term shall commence on July 1 and expire on June 30 ... . No person shall be appointed consecutively to more than two terms as a member of the same board or commission; provided that membership on any board or commission shall not exceed eight consecutive years.
(b) 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; provided 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.
At issue in this case is whether an LUC commissioner whose first term has expired can continue to serve as a holdover member under subsection (b) after the Senate has rejected the commissioner's nomination for a second term pursuant to subsection (a). In other words, the relevant question is whether the Senate's rejection of Kanuha's nomination for a second term rendered Kanuha "disqualified for membership under subsection (a)" and therefore unable to serve as a valid holdover member.
The ICA concluded that the Senate's refusal to confirm a nomination is irrelevant to the determination of holdover status because the only way in which an LUC member can be "disqualified for membership under subsection (a)" is for the member to serve more than two consecutive terms or eight consecutive years. 128 Hawai'i at 377, 289 P.3d at 1013.
"Statutory interpretation is a question of law reviewable de novo." State v. Wheeler, 121 Hawai'i 383, 390, 219 P.3d 1170, 1177 (2009) (quotation marks omitted). In this case, the ICA's interpretation of HRS § 26-34 is contrary to the plain language of the statute and the intent of the legislature. See Riethbrock v. Lanqe, 128 Hawai'i 1, 11, 282 P.3d 543, 553 (2012) ("implicit in the task of statutory construction is our foremost obligation to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself") (quotation marks and citation omitted).
HRS § 26-34 (b) provides that "[a]ny 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[.]" (Emphasis added). "Under general principles of statutory construction, courts give words their ordinary meaning unless something in the statute requires a different interpretation." Saranillio v. Silva, 78 Hawai'i 1, 10, 889 P.2d 685, 694 (1995). See HRS § 1-14 (2009) ("The words of a law are generally to be understood in their most known and usual signification, without attending so much to the literal and strictly grammatical construction of the words as to their general or popular use or meaning."). "[I]t must be supposed that the legislature, in enacting a statute, intended that the words used therein should be understood in the sense in which they are ordinarily and popularly understood by the people, for whose guidance and government the law was enacted . . . ." In re Taxes of Johnson, 44 Haw. 519, 530, 356 P.2d 1028, 1034 (1960) (quotation marks omitted).
In the holdover provision at issue here, the legislature used the phrase "disqualified for membership under subsection (a)" to describe commissioners who are not permitted to serve as holdover members. "Disqualification" means "[t]he act of making ineligible; the fact or condition of being ineligible." Black's Law Dictionary 540 (9th ed. 2009) [hereinafter Black's Law]. See Webster's Third New Int'l Dictionary 655 (1993) [hereinafter Webster's] (defining "disqualify" to mean "to deprive of the qualities, properties, or conditions necessary for a purpose" or "to deprive of a power, right, or privilege"). "Dis" is a prefix meaning to "do the opposite of" or "reverse." Id. at 642. Thus, subsection (b) provides that persons who were formerly ...