The Hawaii Constitution gives the governor the power to make an interim appointment to a board or commission if the term of an official expires when the Senate is not in session, even if the official wants to stay on the commission as a holdover, the Hawaii Supreme Court ruled on Monday.

The 4 to 1 decision settles a constitutional separation-of-powers question that surfaced amidst NextEra Energy’s failed attempt to acquire Hawaiian Electric Industries in 2016, a deal the Hawaii Public Utilities Commission rejected.

Governor David Ige announces his appointment to the Public Utility Commission, Thomas Gorak. 29 june 2016

Gov. David Ige, right, used his interim appointment power to place Tom Gorak, left, on the Public Utilities Commission in July 2016.

Cory Lum/Civil Beat

In June 2016, the term of one of the PUC’s three members, Mike Champley, ended. Champley sought to stay on the commission under statutes that set up the commission and spell out how commission members are supposed to be appointed.

Such appointments generally require the Senate to confirm commission members and allow commission members to stay on until a replacement is appointed by the governor and confirmed by the Senate.

However, the Hawaii Constitution allows the governor to fill a vacant post with an interim position if the vacancy occurs when the Legislature is not in session.

The conflict arose in July 2016, when Gov. David Ige relied on that constitutional provision to appoint Tom Gorak to the commission, even though Champley wanted to stay.

In July 2016, Hermina Morita, a former commission chair who at the time was a member of a public utility cooperative regulated by the commission, challenged Gorak’s appointment. And after a lower court judge rejected her challenge, Morita appealed and ultimately took the matter to Hawaii’s high court.

In ruling for Gorak and the state of Hawaii, the Supreme Court majority said the governor’s authority under the constitution outweighed a commission member’s statutory right to serve as a holdover commissioner.

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,” the court said.

Justice Richard Pollack wrote the opinion and was joined by Justices Paula Nakayama, Sabrina McKenna and Michael Wilson. Chief Justice Mark Recktenwald dissented.

Although the case clarifies the law concerning interim appointments and holdovers, it has no impact on the commission’s current composition. The Senate voted to reject Gorak’s confirmation in 2017, and Ige nominated Jay Griffin, the current commission chair, whom the Senate voted to confirm in August 2017.

Although the Senate initially joined the fight against Gorak by filing an amicus brief supporting Morita, the lawmakers quit pursuing the issue after Gorak was replaced by Griffin.

Read the Supreme Court opinion here.

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