Supreme Court rules in favor of Ige in dispute over PUC appointment

The Hawaii Supreme Court ruled Monday that Gov. David Ige had the authority to appoint Thomas Gorak as one of three commissioners to the Hawaii Public Utilities Commission three years ago, rejecting arguments made by former PUC Chairwoman Mina Morita that the governor was overstepping his bounds and infringing on the Legislature’s powers.

The 4-1 decision clarifies confusion over the governor’s authority to make appointments when the Legislature is not in session and brings some closure to a legal dispute that arose when the PUC rejected Florida- based NextEra Energy’s proposed $4.3 billion purchase of Hawaiian Electric Industries.

Chief Justice Mark Reck­tenwald was the sole dissenter, arguing that Ige’s decision to replace the current commissioner exceeded his powers.

In June 2016 Ige had forced out former PUC Commissioner Mike Champley, whose term was expiring, and in his place put Gorak. The Senate generally confirms or rejects the governor’s appointments before they take office, but in this case the Legislature was in recess and not scheduled to reconvene until January 2017. Gorak took office on an interim basis.

Ige’s decision was controversial because it came just days before the commission was expected to make a final decision on the Next­Era merger, which Ige opposed. The proposed purchase of HEI, which owns the electrical utilities on Oahu and Hawaii island and in Maui County, as well as American Savings Bank, had sparked heated debate within the state’s renewable-energy sector.

Critics of Ige’s decision to replace Champley, including Morita, charged that Ige was trying to stack the deck to scuttle the NextEra deal, which Ige denied. They argued that Champley should have remained as a commissioner on a “holdover” basis until the Legislature reconvened and the Senate approved a replacement.

Two weeks after Gorak’s appointment, the PUC rejected NextEra’s proposed purchase of HEI in a 2-0 decision, with Gorak abstaining. Morita filed a lawsuit against the state saying she sought to protect the PUC from undue political interference and preserve the separation of powers between the legislative and executive branches of power.

The Supreme Court, however, concluded that Ige was indeed entitled to appoint Gorak on an interim basis. The majority held that there is nothing within the legislative history of the holdover statutes that limits the governor’s power in this regard and that it would be “constitutionally suspect” if the Legislature intended such.

The court also pointed out that the Senate has the ability to convene a special session to swiftly remove an interim appointment.

In the case of Gorak, the Senate chose not to. It did, however, vote to reject Gorak’s appointment in April 2017 after its regular session had convened.

Recktenwald, in his dissenting opinion, wrote that the governor’s use of the interim appointment process was an “unauthorized exercise of executive power, as the natural expiration of Champley’s term did not create a vacancy.”

Further, he argued that retaining a holdover commissioner who had both the approval of the governor and Senate, was more constitutionally sound than instilling an interim commissioner approved by the governor alone.