First Circuit Judge Edwin Nacino heard arguments Thursday in a case that boils down to the meaning of two words: “vacancy” and “qualified.”

Former Hawaii Public Utilities Commission Chair Mina Morita is challenging Gov. David Ige’s interim appointment of Tom Gorak to the state utilities commission.

She filed the lawsuit July 15,  the same day the commission decided to reject the proposed $4.3 billion sale of Hawaiian Electric Industries to Florida-based NextEra Energy.

PUC Appointment Thomas Gorak. 29 june 2016
Gov. David Ige, right, announced his appointment of Tom Gorak to the Public Utilities Commission on June 29, a day before Commissioner Mike Champley’s term was set to end. Cory Lum/Civil Beat

Morita has questioned the legality of Ige’s June 29 decision to appoint Gorak, who had served as the PUC’s general counsel, on the basis of whether a vacancy was created when Commissioner Mike Champley’s term ended June 30 or if Champley should have remained in office on a holdover basis until the Senate confirmed Gorak.

Critics of the governor’s interim appointment have said the move was an attempt to flip the vote on the NextEra deal, despite Ige’s assurances that he did not know where any of the commissioners stood at that time.

The three-member commission ended up voting 2-0 against the buyout, with Gorak abstaining.

Outgoing Public Utilities Commission chair Mina Morita speaks at an energy conference, 2014.
Former Public Utilities Commission Chair Mina Morita, center, filed a lawsuit challenging the governor’s interim appointment. PF Bentley/Civil Beat

NextEra and HEI have accepted the decision and Hawaiian Electric is moving forward with energy plans on its own.

In the meantime, Nacino is going to consider whether Ige had the authority to appoint Gorak on an interim basis. It’s a first-of-its-kind case in Hawaii that could make a lasting impression.

The Hawaii Constitution gives the governor the power to make interim appointments to fill board vacancies when the Senate is not in session.

But state law says the commissioner “shall hold office until the member’s successor is appointed and qualified.”

The fundamental question is whether a vacancy was created by the expiration of Champley’s term since he did not resign or otherwise get removed from office.

Morita, represented by former Attorney General Mark Bennett, argues that Champley had a right to remain in office until Gorak was confirmed by the Senate.

Gorak, represented by Deputy Attorney General John Molay, disagrees, saying the term ended June 30, at which point a vacancy was created.

But there’s also disagreement over what “qualified” means.

Bennett told the judge that when the law was created in 1977, the legislators creating it understood the term to be synonymous with “confirmed,” which in this instance means a vote by the Senate.

Molay disputed that though, saying Bennett was “grasping at straws” with that argument.

The judge plans to issue a written ruling. The timetable for doing so is unclear, but Bennett said he expects it won’t take too long.

Morita has said she filed the complaint because “this is an important matter of law that can only be resolved by the judiciary of the State of Hawaii and it must be decided as soon as possible to protect the integrity of the PUC — whose decisions affect every Hawaii resident and business — from undue political interference and to preserve the separation of powers between the legislative and executive branches of government.”

She has said Gorak had no legal right to take office without the Senate’s approval of his nomination, and his having done so “puts at risk all PUC proceedings and every decision and order in which he participates.”

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