Appointment is valid, Senate and panel say

In 2012, two days after the constitutionally mandated 30-day time period had expired, Gov. Neil Abercrombie sent written notification to the state Senate that he appointed Richard Pollack to the Hawaii Supreme Court.

But in the notification, the governor said he had appointed Pollack at a news conference a week earlier.

The notification is unusual because the practice has been for governors to send the written message to the Senate president within the 30-day period. While Pollack’s appointment and status as an associate justice are not being challenged, the case does raise the issues of what constitutes an appointment and whether the governor’s appointment met constitutional deadlines.

Abercrombie’s office maintains the appointment is valid.

The office cited an opinion from the attorney general’s office concluding that the governor’s news conference constituted the appointment and met the constitutional requirements.

Asked why the governor didn’t send the notification to the Senate before the 30-day deadline, the Governor’s Office said there is "literally no deadline for a governor to send a message to the Senate about an appointment."

Senate Judiciary Chairman Clayton Hee, whose committee approved Pollack’s appointment, said his guess is the notification wasn’t sent earlier due to "an oversight."

Hee (D, Heeia-Laie-Waia­lua) said state senators discussed the matter and decided that Abercrombie’s public announcement met the constitutional standard.

The Senate later unanimously approved Pollack’s appointment. He is one of five justices on the state’s highest court.

Abercrombie is currently considering his third appointment to the Hawaii Supreme Court. He received a list of six candidates from the Judicial Selection Commission on Jan. 27.

Under the state Constitution a governor must make the judicial appointment within 30 days of receiving the commission’s list. That deadline falls on Feb. 26.

On May 11, 2012, the commission sent to Abercrombie lists for a vacancy on the Maui Circuit Court and another on the Hawaii Supreme Court. That meant the deadline for appointments was June 10.

On June 12, 2012, Abercrombie announced the appointment of Peter Cahill for the Maui circuit judgeship, but later that day said Attorney General David Louie informed him the appointment was two days late.

The governor acknowledged he should have made the appointment on June 10, 2012.

But on the same day he said he was too late on the Cahill appointment, the governor sent his message to the Senate.

It said in accordance with the state Constitution, "on June 5, 2012, I made the appointment, and announced the appointment at a public press conference on the same day, of Richard W. Pollack" to the high court.

In a memorandum to the governor dated June 20, 2012, First Deputy Attorney General Russell Suzuki said he was confirming his office’s oral advice earlier that the notification to the Senate citing the news conference "comports" with constitutional requirements.

Suzuki said an appointment is "an open and unequivocal act on the part of the appointing authority empowered to make it."

He said "by your open and unequivocal actions" at the news conference, the governor appointed Pollack on that date, June 5, 2012.

Hee told the Hono­lulu Star-Advertiser he had some concerns and that the Senate "talked at some length" about Pollack’s appointment.

He said he recalls that the point was made that the governor could probably successfully argue that the public announcement would meet the requirements of the Constitution.

"At the end of the day, the consensus was to take the governor at his word," Hee said.

Under the state Constitution, if the governor doesn’t make the appointment within 30 days of receiving the names of the candidates, the Judicial Selection Commission makes the appointment from the list it sent the governor.

The commission appointed Cahill for the Maui vacancy, but if it had to choose, there was no guarantee that the nine-member panel would have appointed Pollack.

The four others on the list were David M. Forman, interim director of the University of Hawaii law school’s environmental law program, and three state judges: Circuit Judge Derrick Chan, Appeals Judge Daniel Foley and Chief Appeals Judge Craig Naka­mura.

The commission is not disputing the validity of the appointment, according to commissioner James Bickerton.

Bickerton was authorized to speak on the issue by Chairwoman Doris Ching, who was not on the commission at the time of Pollack’s appointment.

Bickerton, a Hono­lulu lawyer, said the Constitution does not specify how an appointment is made and "does not have any expressed requirement that written notice to the Senate be given once the appointment is made or even at the time the appointment is made."

He said the commission’s understanding, as reported by the news media, was that the governor made the appointment when he called the news conference on June 5, 2012.

"Since the Constitution provides no particular method of appointment, there did not appear to be any reason to question the appointment made by public announcement," he said.

The difference between Pollack and Cahill was that the governor announced Pollack’s appointment June 5, Bickerton said.

Susan Ichinose, who is no longer with the commission, but was chairwoman of the commission at the time of Pollack’s appointment, said she recalled the news conference and Pollack appearing with the governor.

"I personally considered that to be a public announcement of the appointment," she said. "With my knowledge that the Constitution doesn’t require any particular mode of appointment, I would agree with Jim’s analysis."