Update 4:30 p.m., 7/6/2016

Senate President Ron Kouchi wants Attorney General Doug Chin to issue a formal opinion on why he thinks Gov. David Ige had the legal authority to make an interim appointment last week naming Tom Gorak to the Hawaii Public Utilities Commission to replace Commissioner Mike Champley.

Critics of the governor’s decision say he installed Gorak without Senate confirmation because it could shift the three-member commission’s vote on whether to approve the proposed $4.3 billion buyout of Hawaiian Electric Industries by Florida-based NextEra Energy.

A decision is expected any day on the historic merger agreement, which underwent a rigorous 18-month vetting process.

Senate President Ron Kouchi1. 3 may 2016

Senate President Ron Kouchi has asked Attorney General Doug Chin for a formal legal opinion on Gov. David Ige’s interim appointment of Tom Gorak.

Cory Lum/Civil Beat

Ige has steadfastly opposed the deal, but has maintained that he does not know where any of the three commissioners stand on it — or where Champley stood.

Until Gorak, Ige’s only appointment has been the commission’s chair, Randy Iwase. Former Gov. Neil Abercrombie appointed Champley and Commissioner Lorraine Akiba.

Chin issued two informal opinions last month — one to Ige and the other to Sen. Roz Baker — concluding that the governor had the authority to make the interim appointment of Gorak, who was the commission’s chief counsel and has been closely involved in the NextEra case.

Kouchi, who has said senators are considering a lawsuit over the appointment, outlined six questions Wednesday in his letter to Chin that he wants the attorney general’s office to answer — and soon.

“As time is of the essence, request is made that a formal Attorney General Opinion be issued forthwith,” Kouchi said in the letter.

He said Chin’s responses are needed to “properly inform the Senate in exercise of all of its rights and responsibilities as provided by law.” 

Kouchi asked Chin about the apparent conflict between sections of the Hawaii constitution and Hawaii Revised Statutes, questioning whether some parts of the latter may be unconstitutional.

Update:  Josh Wisch, special assistant to Chin, said the attorney general’s office appreciates Kouchi’s questions and will respond “shortly.”

“We know questions have been raised regarding previous attorney general opinions and whether those are consistent with our recent advice regarding interim appointments,” he said. “We will thoroughly consider that issue but note that previous legal opinions may have dealt with different legal and factual situations.”

The law says a commissioner “shall hold office until the member’s successor is appointed and qualified.” There’s been questions about what “qualified” means — being confirmed by the Senate or meeting the job description spelled out in the law.

Former Hawaii Public Utilities Commission Chair Mina Morita has said it means being confirmed by the Senate. But Chin has said it means “the governor’s review of the qualifications of the individual as well as the taking of the oath of office by the appointee.”

Chin said in his informal opinion to Ige that the appointment could face a legal challenge because there is no definitive Hawaii case confirming precisely when a vacancy exists on the commission in the event a commissioner does not resign at the end of the term.

Civil Beat left a message Wednesday afternoon seeking comment from Kouchi.

The request for a formal opinion was made on behalf of a majority of senators, according to a Senate news release.

Read the letter below.

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