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Oral Argument Before the Hawaii Supreme Court — No. SCAP-16-0000686

No. SCAP-16-0000686, Thursday, December 7, 2017, 8:45 a.m.

HERMINA M. MORITA, Petitioner/Petitioner-Plaintiff-Appellant, vs. THOMAS GORAK, STATE OF HAWAI I, JOHN DOES 1-50, JANE DOES 1-50, DOE CORPORATIONS 1-50, and/or OTHER DOE ENTITIES 1-50, Respondents/Respondents-Defendants-Appellees.

The above-captioned case was set for argument on the merits at:

Supreme Court Courtroom
Ali iōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner:

Harold Bronstein

Attorneys for Respondent:

Russell A. Suzuki and Deirdre Marie-Iha, Deputy Attorneys General

NOTE: Order granting Application for Transfer, filed 07/19/17.

COURT: MER, C.J., PAN, SSM, RWP, and MDW, JJ.

[ Listen to the entire audio recording in mp3 format ]

 Brief Description:

This appeal concerns Governor David Ige’s 2016 appointment of Thomas Gorak to the Public Utilities Commission (“PUC”). According to Hawaii Revised Statutes (“HRS”) § 269-2 (governing the PUC), which incorporates HRS § 26-34 (governing the selection and terms of members of boards and commissions), PUC commissioners are appointed after the Governor nominates them and the Senate confirms the nomination.

Prior to Gorak’s appointment, the PUC consisted of Commissioners Randall Iwase, Lorraine Akiba, and Michael Champley. Champley’s term was set to expire on June 30, 2016. During the regular legislative session of 2016, Governor Ige did not nominate Champley’s successor, and no successor was confirmed. After the close of the 2016 legislative session, on June 29, 2016, Governor Ige announced that Gorak would replace Champley on an interim basis, effective July 1, 2016.

As authority for his appointment, the governor cited article V, section 6 of the Hawai i State Constitution. That section is titled “Executive and Administrative Offices and Departments,” and it states, in relevant part, the following:

When the senate is not in session and a vacancy occurs in any office, appointment to which requires the confirmation of the senate, the governor may fill the office by granting a commission which shall expire, unless such appointment is confirmed, at the end of the next session of the senate.

Champley, for his part, informed the governor that he intended to stay on as a hold-over commissioner, citing to HRS § 269-2(a), which provides that each PUC member “shall hold office until the member’s successor is appointed and qualified.”

On July 1, 2016, Gorak was sworn in as a PUC commissioner. Later that month, Hermina M. Morita challenged the appointment via a Complaint and Quo Warranto petition filed against Gorak and the State of Hawai i in the Circuit Court of the First Circuit. Morita argued that Champley remained the lawful office holder, citing HRS § 269-2, as well as HRS § 26-34(b), which provides, in relevant part, “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. . . .”

The parties filed cross-motions for summary judgment. After a hearing, the circuit court concluded that a vacancy on the PUC occurred when Champley’s term expired, and that Governor Ige validly appointed Gorak as interim commissioner under article V, section 6. The circuit court also concluded that Morita lacked standing to pursue declaratory relief. The circuit court thus granted Gorak and the State’s motion for summary judgment and denied Morita’s cross-motion for partial summary judgment. Morita appeals from the circuit court’s Final Judgment in favor of Gorak and the State and against her.

On appeal, Morita raises as error the circuit court’s conclusions that (1) a vacancy occurred at the expiration of Champley’s term; (2) Governor Ige validly appointed Gorak to the PUC; and (3) she lacked standing to pursue declaratory relief.