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Morita v. Gorak

Supreme Court of Hawaii

November 18, 2019

HERMINA M. MORITA, Petitioner/Plaintiff-Appellant,
THOMAS GORAK and STATE OF HAWAI'I, Respondents/Defendants-Appellees.


          Harold Bronstein for appellant

          Deirdre Marie-Iha for appellee



          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 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 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 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 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 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 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 "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 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, 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.

         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 § 2 69-2, 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 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 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.


         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) .


         Article V, section 6 of the Hawai'i Constitution empowers the governor to make interim appointments to offices 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 "[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]11 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 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 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 ...

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