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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

HERMINA M. MORITA,

Petitioner/Plaintiff-Appellant,

vs.

THOMAS GORAK and STATE OF HAWAII,

Respondents/Defendants-Appellees.

SCAP-16-0000686

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CAAP-16-0000686; S.P. NO. 16-1-0251)

NOVEMBER 18, 2019

NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ., 

WITH RECKTENWALD, C.J., DISSENTING

OPINION OF THE COURT BY POLLACK, J.

In accordance with the structure of our political 

system, the appointment of many government officials is a shared 

responsibility of the executive and legislative branches. The 

governor is entitled to choose a nominee for such positions, but 

the nominee typically may not take office until the senate has 

Electronically Filed

Supreme Court

SCAP-16-0000686

18-NOV-2019

07:54 AM
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voted to confirm the individual, thus ensuring the appointment 

is generally agreeable to both elected branches.

Balanced against these political considerations are 

the practical realities of ensuring the day-to-day operations of 

public institutions. Governmental agencies may experience 

difficulties fulfilling their duties when offices that are 

necessary for their administrative functioning are left vacant. 

To protect against disruption, the Hawai‘i Constitution permits 

the governor to make interim appointments to offices that 

require senate confirmation when a vacancy arises and the senate 

is not in session. Additionally, the legislature has 

statutorily provided for certain office holders to continue 

their service as a “holdover” official following the expiration 

of their term, remaining in office until their successor is 

appointed.

This case presents a question as to the interaction of 

these provisions: is the governor entitled to make an interim 

appointment when the term of an official who is statutorily 

permitted to holdover expires and the senate is not in session? 

Because there is no indication in the language or the 

legislative history of the holdover statutes to limit the 

governor’s authority to make interim appointments and the

statutes would be constitutionally suspect if the legislature 

intended to achieve such an outcome, we conclude that the 
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governor is permitted to make an interim appointment under these 

circumstances.

I. BACKGROUND 

A. Facts

The facts in this case are undisputed.1 Prior to June 

30, 2016, the Hawaii Public Utilities Commission (PUC) was 

composed of three commissioners: Randall Iwase, Lorraine Akiba, 

and Michael Champley. Champley’s term as commissioner was 

scheduled to expire on June 30, 2016. The 2016 legislative 

session ended on May 5, 2016, without Governor David Ige

submitting a nomination for a new commissioner to replace 

Champley to the Senate for confirmation.

On June 21, 2016, Governor Ige sent Champley a letter 

informing him of the imminent expiration of his term and 

thanking him for his service. Champley responded in a letter 

dated June 28, 2016, stating that he intended to continue to 

serve as a “holdover” commissioner until his successor was

appointed and confirmed by the senate pursuant to Hawai‘i Revised 

Statutes (HRS) § 269-2(a) (2007). Nevertheless, Governor Ige 

announced the following day that he intended to exercise the 

governor’s constitutional authority to temporarily fill 

 

1 After the filing of the Complaint, the parties filed Joint 

Stipulated Facts, which detail the events leading to the current suit.
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vacancies that occur while the senate is in recess to appoint 

Thomas Gorak to replace Champley following the expiration of 

Champley’s term. Gorak was sworn in as commissioner on an 

interim basis on July 1, 2016.

B. Circuit Court Proceedings

On July 15, 2016, Hermina Morita, a member of a public 

utility cooperative that is regulated by the PUC, filed a 

complaint and quo warranto petition (Complaint) against Gorak 

and the State of Hawaii in the Circuit Court of the First 

Circuit (circuit court).

2 The Complaint alleged that since Gorak 

was sworn in, he had wrongfully occupied the office of the 

commissioner of the PUC because Champley was still the lawful 

officeholder until his successor was confirmed by the senate. 

Quoting HRS § 269-2, the Complaint stated that “[e]ach member 

[of the PUC] shall hold office until the member’s successor is 

appointed and qualified.” The Complaint pointed to language 

included in a 1980 Hawaii Attorney General Opinion to argue that 

no vacancy exists at the expiration of an incumbent’s term when 

a statute allows the incumbent to continue in office until a

successor is appointed. (Citing Op. Att’y Gen. No. 80-4 

(1980).) Thus, the Complaint alleged, because no vacancy 

 

2 The Honorable Edwin C. Nacino presided.
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existed, the interim appointment power of the governor was not 

implicated. (Citing Op. Att’y Gen No. 80-4, at 2.)

The Complaint contained four counts of relief, though 

only two are relevant in this appeal.3 Count I sought an order

pursuant to HRS § 659-6 (2016)4, the quo warranto statute,

declaring that Gorak did not properly hold the office of PUC

commissioner and prohibiting him from further performing any of 

the post’s official duties.

5 Count III sought a declaratory

judgment as to whether Gorak lawfully held the office of PUC

commissioner. 

The State and Gorak (collectively, Gorak) filed a 

joint Answer denying that Gorak wrongfully occupied or usurped 

the office of PUC commissioner and that Champley was the lawful 

 

3 The parties stipulated to the dismissal of Count II (“Common Law 

Quo Warranto” against Gorak) and Count IV (“Private Attorney General 

Doctrine” against the State) of the Complaint without prejudice.

4 HRS § 659-6 provides the following in relevant part:

[(a)] If a person to whom an order is directed with respect 

to an office of which the person performs the duties does 

not answer within the time allowed or the answer is 

insufficient or it is found that the person has usurped the 

office or continues in it unlawfully, the court in addition 

to declaring the person not qualified to fill the office 

and forbidding the person to perform the duties of the 

office any longer, may direct that a new appointment be 

made and may grant other appropriate relief.

5 The parties stipulated to the issuance of an order of quo 

warranto, which directed Gorak to file an answer to the Complaint and to 

“state the authority under which” he “claim[ed] to act as a Commissioner” of 

the PUC.
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officeholder.6 On the same day that Gorak filed his Answer, he 

also filed a Motion for Summary Judgment arguing that he was

properly appointed as a commissioner of the PUC under the 

interim appointments provision of the Hawaii Constitution, which 

authorized the governor to fill a vacancy in any office when the 

senate is not in session. Gorak contended that this provision, 

contained in article V, section 6 of the Hawaii Constitution, 

did not include the phrase “as provided by law,” and the interim 

appointment power was therefore self-executing; that is, it 

could be exercised on its own without any requirement for 

implementing legislation. (Citing State v. Rodrigues, 63 Haw. 

412, 414, 629 P.2d 1111, 1113 (1981).) As a result, Gorak 

asserted, the governor’s interim appointment authority was 

subject only to the limitations stated in the constitutional 

provision itself, and any statutes touching upon interim 

appointments are effective only if consistent with the 

provision.

The statute in dispute in this case, Gorak stated, was 

HRS § 269-2, which provides that “[e]ach member [of the PUC] 

shall hold office until the member’s successor is appointed and 

 

6 Gorak admitted that an “actual controversy” existed regarding 

whether Gorak was properly appointed and qualified so as to end Champley’s 

term on July 1, 2016. 
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qualified.”

7 This statute allows, though does not require, a 

member of the PUC to continue to serve in the position after the 

expiration of the member’s term as a “holdover,” Gorak 

explained. But, Gorak argued, this statute cannot be 

interpreted to circumvent the governor’s interim appointment 

authority. Therefore the statute cannot prevent a vacancy from 

occurring upon the expiration of a term, Gorak contended;

otherwise the governor’s constitutional authority would be 

“substantially--and in individual cases, completely--undercut”

as it would allow the legislature to define when the governor 

can exercise a power that the constitution granted solely to the 

governor. Defining “vacancy” to include the end of a set term 

is consistent with the authorities granted to the governor in 

the Hawaii Constitution, Gorak asserted. Accordingly, Gorak 

concluded that the expiration of Champley’s term constituted a 

 

7 Gorak argued that it was significant that the statute uses the 

word “qualified” rather than the phrase “confirmed by the senate,” which is 

used in similar statutes. (Citing HRS §§ 302A-123 (Supp. 2016), 304A-104 

(Supp. 2016).) Because the legislature chose to use a different term in HRS 

§ 269-2(a), Gorak contended, the court should presume that the difference is 

intentional and give the difference effect when construing the statute. 

(Citing Agustin v. Dan Ostrow Const. Co., 64 Haw. 80, 83, 636 P.2d 1348, 1351 

(1981).) “Qualified,” Gorak contended, means the governor has reviewed the 

appointee’s qualifications and the appointee has taken the oath of office, 

whereas “confirmation” is a function of the senate that is used for full-term 

appointments. (Citing Haw. Const. art. XVI, § 4; Haw. Const. art. V, § 6; 

Sierra Club v. Castle & Cooke Homes Hawaii, Inc., 132 Hawaii 184, 192, 320 

P.3d 849, 857 (2013).)
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“vacancy” that Governor Ige could fill using his interim 

appointment power.8

Morita responded by filing a consolidated Cross-Motion 

for Partial Summary Judgment (cross-motion) and opposition to 

Gorak’s motion, arguing that the Hawaii Constitution only grants 

the governor the interim appointment power when there is a 

“vacancy,” and the term “vacancy” means only an office that is 

unoccupied or empty. (Citing Office of Hawaiian Affairs v. 

Cayetano, 94 Hawaii 1, 6 P.3d 799 (2000).) Here, Morita 

contended that there was no “vacancy” for which Governor Ige 

could utilize his interim appointment power because Champley did 

not resign and was not otherwise removed from office. Morita 

also argued that the meaning of “vacancy” necessarily derives

from statutory authority because the Hawaii Constitution is 

silent as to the duration of a PUC commissioner’s term. Under 

HRS § 269-2(a), Morita asserted, there was not a vacancy because

Champley was entitled to hold the commissioner position until

Champley’s successor was confirmed by the senate--a necessary 

legal requirement to be “qualified” as a commissioner of the PUC

under the statute. Thus, Morita concluded that the governor’s 

 

8 Regarding declaratory relief, Gorak also argued that Morita 

lacked standing because the Complaint made no allegations on which a 

“distinct and palpable” injury to Morita could be based and “[a]ny such 

allegation would likely be based on speculation and conjecture in any event.” 

(Citing Hanabusa v. Lingle, 119 Hawaii 341, 347, 198 P.3d 604, 610 (2008).)
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interim appointment power was not implicated because there was 

not an actual vacancy at the time of Gorak’s appointment.

9

Pursuant to the parties’ stipulation, the Hawai‘i State 

Senate filed an amicus curiae brief in support of Morita. 

Included as exhibits to the brief were two attorney general 

opinions. The first was the 1980 letter cited by the Complaint, 

Opinion 80-4, which was issued in response to inquiries by the 

chairman of a senate committee regarding the length of time a 

holdover official is authorized to continue serving if the 

official’s nomination for a second term is rejected by the 

senate. In explaining the operation of a holdover statute, the 

opinion stated the following:

Where a statute specifies that the incumbent shall continue 

to hold office until his successor is appointed and 

qualified, it is well settled that the incumbent retains 

his office as a de jure officer and no vacancy exists at 

the expiration of the incumbent’s term. Therefore, the 

interim appointment power of the governor is not activated.

Op. Att’y Gen. No. 80-4, at 2. 

Also attached to the amicus curiae brief was a second,

more recent attorney general opinion. In response to questions 

posed by the Senate President following Gorak’s ostensible 

interim appointment, the attorney general issued Opinion 16-3, 

which concluded that “the Governor is authorized by article V, 

 

9 Morita argued that she had standing to obtain declaratory relief 

because she suffered an injury in fact as a result of the State wrongfully 

paying Gorak’s salary using funds she contributed to as taxpayer.
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section 6 of the Hawai‘i Constitution to appoint a successor 

member to the PUC when the term of the incumbent member expires, 

and irrespective of whether the incumbent continues to serve as 

a holdover member.” Op. Att’y Gen. No. 16-3, at 1 (2016). The 

opinion “acknowledge[d] that some portions of Attorney General 

Opinion No. 80-4 included statements that indicated otherwise.” 

Id. The opinion stated, however, that “those issues were not 

central to the issue resolved in that opinion and are superseded 

by the analysis offered here.” Id.

The Senate asserted in its brief that the conflicting 

attorney general opinions exemplified the actual controversy at 

issue in the case. The latter opinion misinterpreted article V, 

section 6, the Senate argued, by ignoring the different ways in 

which the Hawai‘i Constitution provides for the appointment and 

removal of single executive department heads, members of boards 

and commissions that head principal departments, and all other 

officers that require senate confirmation. The constitution 

makes only single executive department heads removable at the 

governor’s discretion, the Senate contended. By contrast, the 

terms of office and removal of department-head commission 

members and all other officers requiring senate confirmation are 

set by statute, the Senate continued, and the governor cannot 

use the interim appointment power to circumvent the requirements 

the legislature has prescribed.
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In a consolidated reply to Morita and the Senate’s 

respective filings, Gorak reiterated the arguments from his 

motion, stating that the legislature may define a “vacancy” only 

if it does so in a manner consistent with the grant of power in 

article V, section 6 of the Hawaii Constitution. Morita’s

interpretation of “vacancy” under HRS § 269-2, Gorak contended, 

impermissibly limited the governor’s constitutional interim

appointment power and threatened the balance between the 

executive and legislative branches of government.

The circuit court granted Gorak’s Motion for Summary 

Judgment and denied Morita’s cross-motion. The court found that 

“Champley’s term of office . . . expired on June 30, 2016, and 

that a vacancy occurred for purposes of article V, section 6 of 

the Hawaii Constitution upon the expiration of Mr. Champley’s 

term of office.” Therefore, the court concluded that “Governor 

Ige’s interim appointment of Mr. Thomas Gorak as a commissioner 

on the PUC when the Senate was not in session was valid.”10 

Counts I and III were accordingly dismissed without prejudice.

On October 17, 2016, Morita filed a timely notice of appeal

challenging the circuit court’s Final Judgment in Favor of 

 

10 The court also found that Morita failed to establish that she had 

standing to obtain declaratory relief.
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Respondent-Defendants Thomas Gorak and the State of Hawai‘i and 

Against Petitioner-Plaintiff Hermina M. Morita (judgment). 

C. Subsequent Events

On March 28, 2017, during the course of briefing 

before the Intermediate Court of Appeals (ICA), Governor Ige 

submitted Gorak’s interim appointment as PUC commissioner to the 

Senate for confirmation. 2017 Senate Journal, at 396 (Gov. Msg.

No. 703); see also Gov. Msg. No. 703, 29th Leg., Reg. Sess. 

(2017).

11 One month later, the Senate voted to reject Gorak’s

confirmation. 2017 Senate Journal, at 591-94. Following the 

close of the 2017 regular legislative session, Governor Ige 

again invoked his interim appointment powers to name James P. 

Griffin as PUC commissioner on an interim basis. Press Release, 

Hawai‘i Governor’s Office, Governor Ige Appoints UH Faculty 

Member, Researcher James Griffin to Public Utilities Commission

(May 19, 2017).

12 Thereafter, Governor Ige submitted Griffin’s 

appointment to the Senate during a special session for 

confirmation, and Griffin was unanimously confirmed by the 

 

11 https://www.capitol.hawaii.gov/Archives/measure_indiv_

Archives.aspx?billtype=GM&billnumber=703&year=2017 [https://perma.cc/VGG9-

A98U].

12 https://governor.hawaii.gov/newsroom/governors-office-newsrelease-governor-ige-appoints-uh-faculty-member-researcher-james-griffin-topublic-utilities-commission/ [https://perma.cc/857Q-FAAY]. 
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Senate on August 31, 2017.

13 2017 Senate Journal, Spec. Sess., 

at 1 (Gov. Msg. No. 3); id. at 40. Although it had participated 

as amicus curiae before the trial court, the Senate made no 

further filings or appearances throughout the appeal of this 

case.

After the close of briefing, Morita filed an 

application for transfer to this court, arguing that the case 

involved a matter of fundamental public importance that turned 

on a novel question of law. Gorak filed a response stating he 

had no objection to transfer, and this court accepted Morita’s 

application on July 19, 2017. 

II. STANDARD OF REVIEW

This court reviews questions of constitutional law de 

novo under the “right/wrong” standard. State v. Sasai, 143 

Hawaii 285, 294, 429 P.3d 1214, 1223 (2018); State v. Arceo, 84 

Hawaii 1, 11, 928 P.2d 843, 853 (1996).

III. DISCUSSION

Article V, section 6 of the Hawai‘i Constitution 

empowers the governor to make interim appointments to offices

 

13 Although the Senate’s rejection of Gorak’s confirmation and 

Griffin’s subsequent appointment and confirmation is not in the record, we 

have the discretion to take judicial notice of such matters under Hawaii 

Rules of Evidence (HRE) Rule 201 (2016) as “it is a matter of public record 

and easily verifiable.” Williams v. Aona, 121 Hawaii 1, 11 n.6, 210 P.3d 

501, 511 n.6 (2009).
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that require senate confirmation when a vacancy arises in such 

office and the senate is not in session. Rather than following 

the typical procedure, under which the governor nominates an 

individual who takes office for a full term if the senate votes 

to confirm the nominee, an interim appointee may be sworn into 

office at the time the appointment is made effective, and the 

senate may thereafter vote to confirm the interim appointment. 

Haw. Const. art. V, § 6. If the senate declines to do so, the 

interim appointment expires at the end of the next legislative 

session. Id.

The constitution itself requires senate confirmation

for the appointment of the heads of principle executive 

departments, but the governor’s interim appointment power is not 

limited to these offices. It applies when there is a vacancy in

“any office, appointment to which requires the confirmation of 

the senate,” including those that the legislature has chosen to 

statutorily condition appointment on senate confirmation. See

id. The legislature has so conditioned appointment to the 

office of PUC commissioner, which is established by HRS § 269-2. 

HRS § 269-2(a) states in relevant part, “There shall be a public 

utilities commission of three members, to be called 

commissioners, and who shall be appointed in the manner 

prescribed in section 26-34, except as otherwise provided in 

this section.” HRS § 26-34(a) (2009) in turn provides that 
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“[t]he members of each board and commission established by law 

shall be nominated and, by and with the advice and consent of 

the senate, appointed by the governor.” There is accordingly no 

dispute that the governor is entitled to exercise the interim 

appointment power if a vacancy occurs on the PUC when the senate 

is not in session.

This case instead turns on when the office of PUC

commissioner may be considered vacant for purposes of the 

interim appointment power.14 Under HRS § 269-2(a), “[a]ll 

members [of the PUC] shall be appointed for terms of six years 

each,” and “[e]ach member shall hold office until the member’s 

successor is appointed and qualified.” A PUC commissioner thus

typically serves for a designated term,15 then continues to hold 

 

14 As a threshold matter, Morita preemptively argues that any 

concerns about mootness may be overcome by the public interest exception to 

the doctrine that this court has recognized. This court has stated that we 

may decide the merits of a case in which we cannot order the requested relief 

if there are public interests at stake and the question at the heart of the 

case is likely to recur, making an authoritative determination of the legal 

issues involved desirable for the future guidance of public officers. Wong 

v. Bd. of Regents, 62 Haw. 391, 395-96, 616 P.2d 201, 204 (1980) (quoting 

Johnston v. Ing, 50 Haw. 379, 381, 441 P.2d 138, 140 (1968)). PUC 

commissioners make important decisions regarding public utilities, and their 

terms of office routinely expire after the last day of the regular 

legislative session. A conflict over the governor’s authority to make an 

interim appointment during a commissioner’s holdover service is thus likely 

to recur, and it is in the public interest that this court resolves this 

case. We thus agree that a mootness argument would easily be dispensed with 

because this case would fall into the public interest exception in any event.

15 Although HRS § 269-2 states that a commissioner’s term shall be 

six years, HRS § 26-34(c), which applies to the PUC when HRS § 269-2 does not 

provide otherwise, specifies that “[a] vacancy occurring in the membership of 

any board or commission during a term shall be filled for the unexpired term 

thereof, subject to Article V, section 6 of the Constitution of the State.” 

(continued . . .)
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office as an out-of-term “holdover” until the commissioner’s 

successor is appointed and qualified. If the office of PUC

commissioner was vacant during the commissioner’s out-of-term 

holdover service, Governor Ige was authorized to exercise his 

interim appointment power following the June 30, 2016 expiration 

of Champley’s term, making his appointment of Gorak lawful. If 

the PUC holdover provision precludes a vacancy, however, Gorak 

could not be lawfully appointed to the position. 

“The doctrine of ‘constitutional doubt,’ a 

well-settled canon of statutory construction, counsels that 

‘where a statute is susceptible of two constructions, by one of 

which grave and doubtful constitutional questions arise and by 

the other of which such questions are avoided, our duty is [to] 

adopt the latter.’” In re Doe, 96 Hawai‘i 73, 81, 26 P.3d 562, 

570 (2001) (quoting Jones v. United States, 529 U.S. 848, 857 

(2000)). We therefore begin by considering the text and history 

of the interim appointments clause and the role it plays within 

the constitutional balance of power to determine whether an 

interpretation of the holdover provisions that prevents a 

vacancy from arising would be constitutionally permissible. We 

 

(. . . continued)

Consequently, when Champley was appointed following his predecessor’s 

resignation, his term was scheduled to expire six years from his 

predecessor’s original appointment rather than six years from his own. No 

party has argued that HRS § 26-34(c) is inconsistent with HRS § 269-2. 
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then turn to the language, structure, and legislative history of 

HRS §§ 26-34 and 269-2 to determine whether the holdover 

provisions were in fact intended to prevent a vacancy from 

arising.

A. The Holdover Provisions Would Be Constitutionally Suspect if 

Interpreted to Preclude a Vacancy for Purposes of the Governor’s 

Interim Appointment Power 

1. By Its Terms, the Interim Appointment Power Is Self-Executing 

and Not Subject to Statutory Limitations

The interim appointments clause of article V, section 

6 of the Hawaii Constitution states in relevant part as follows: 

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. 

Notably, the clause does not contain the phrase “as provided by 

law,” which is included in a number of other provisions in the 

constitution that govern appointments. For example, article X, 

section 2 states that “[t]he governor shall nominate and, by and 

with the advice and consent of the senate, appoint the members 

of the board of education, as provided by law.” (Emphasis 

added.) Similarly, article X, section 6 provides that the 

members of the Board of Regents of the University of Hawai‘i

“shall be nominated and, by and with the advice and consent of 

the senate, appointed by the governor from pools of qualified 

candidates presented to the governor by the candidate advisory 
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council for the board of regents of the University of Hawaii, as 

provided by law.” (Emphasis added.)

The omission is significant. The phrase “as provided 

by law” indicates that, as long as it complies with the basic 

text of the provision, the subject matter “may be dealt with by 

the Legislature as it deems appropriate.” State v. Rodrigues, 

63 Haw. 412, 415, 629 P.2d 1111, 1114 (1981) (quoting Agnew v. 

Schneider, 253 N.W.2d 184, 187 (N.D. 1977)). Its absence in the 

interim appointments clause suggests the constitution does not 

contemplate a role for the legislature in prescribing the time 

and manner in which the governor may make interim appointments. 

This impression is strengthened by article XVI, 

section 16 of the Hawai‘i Constitution, which requires this court 

to interpret constitutional provisions to “be self-executing to 

the fullest extent that their respective natures permit.” To 

fulfill this mandate, we set forth the test for identifying a 

self-executing constitutional provision in State v. Rodrigues, 

63 Haw. at 414, 629 P.2d at 1113. Adopting the standard 

articulated by the United States Supreme Court, we stated,

A constitutional provision may be said to be self-executing 

if it supplies a sufficient rule by means of which the 

right given may be enjoyed and protected, or the duty 

imposed may be enforced; and it is not self-executing when 

it merely indicates principles, without laying down rules 

by means of which those principles may be given the force 

of law.

Id. (quoting Davis v. Burke, 179 U.S. 399, 403 (1900)).
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Under this test, it is clear that the governor’s 

interim appointment power is self-executing. Rather than laying 

out only general principles and leaving the details to be 

defined through legislation, the clause outlines definite 

standards as to when and how the governor may utilize the power. 

There is thus no doubt that the interim appointment clause 

carries the force of law on its own accord, and it is axiomatic 

that a self-executing constitutional provision may not be 

curtailed or qualified by statute. See State v. Handa, 66 Haw. 

82, 84, 657 P.2d 464, 466 (1983) (“[T]he constitution as the 

highest . . . expression of the law-making power, operates to 

repeal or supersede . . . all statutes that are . . . 

inconsistent with the full operation of its provisions.” (first 

alteration in original) (quoting 16 C.J.S. Constitutional Law § 

43, at 135)). In sum, the text of the constitution indicates 

that the governor’s constitutional authority to make interim 

appointments was meant to supersede any restrictions that the 

legislature might attempt to place upon it.

16

 

16 The dissent contends that the self-executing nature of the 

interim appointments provision is irrelevant because “the provision does not 

conflict with any statute.” Dissent at 18. Holdover provisions that 

preclude vacancies do not conflict with the governor’s interim appointment 

power, the dissent argues, because “[t]aken to its logical end, this argument 

cannot support a functioning government because any otherwise-valid law that 

bears on appointing an officer would in some small way necessarily limit the 

interim appointments clause by causing the position not to be vacant.” Id. 

The dissent’s contention is clearly incorrect. The logical end of our 

position is that the legislature cannot prevent a vacancy from arising at the 

(continued . . .)
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2. The Constitutional History Demonstrates a Choice by the 

Delegates to Utilize Interim Appointments Instead of Holdover 

Service

To the extent the interim appointments clause is 

ambiguous as to its interaction with a statutory holdover 

provision, “extrinsic aids may be examined to determine the 

intent of the framers and the people adopting the proposed 

amendment.” State v. Kahlbaun, 64 Haw. 197, 201-02, 638 P.2d 

309, 314 (1981). The committee reports and floor debates of the 

1950 constitutional convention during which the clause was 

drafted make no specific mention of the governor’s interim 

appointment power. But a closer examination of the proposals 

bearing on executive power indicates that the delegates 

specifically considered and rejected holdover provisions similar 

to the ones now appearing in HRS §§ 26-34 and 269-2.

Two proposals bearing on the issue were submitted to 

the Committee on Executive Powers and Functions when it was 

 

(. . . continued)

end of a legislatively prescribed term. The power of the legislature, for 

example, to set the dates of terms of office, prescribe the length and number 

of terms, and provide for the removal of PUC commissioners is unaffected by 

our conclusion that the legislature cannot preclude vacancies from arising 

outright, which would substantially constrict the interim appointment power 

granted by article V, section 6. Whether, and to what extent, the 

legislature’s otherwise lawful authority could constitutionally restrict the 

governor’s interim appointment power is a grave constitutional question. 

Because the dissent’s interpretation of HRS § 269-2 presents that question, 

and our construction avoids it, “our duty is [to] adopt the latter.” In re 

Doe, 96 Hawai‘i 73, 81, 26 P.3d 562, 570 (2001) (quoting Jones v. United 

States, 529 U.S. 848, 857 (2000)). This conclusion is further militated by 

the absence of any legislative intent that HRS § 269-2 restricts the 

governor’s interim appointment power. See infra Part III.B.2. 
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drafting the committee proposal that would eventually become 

article V, section 6 of the Hawai‘i Constitution. The first,

proposal 22, was entitled “Appointment, Removal and Tenure of 

Department Heads and High Governmental Officers.” Proposal No. 

22 (April 14, 1950) at 1, in 1950 Constitutional Convention 

materials, Box 12 (on file with the Hawaii State Archives). The 

proposal provided that 

the members of all boards and commissions of a public 

character that may be created by law . . . . shall be 

appointed for terms to expire with the term of the 

governor, and until their successors are appointed and 

qualified; provided, that the terms of members of boards 

and commissions may otherwise expire if so provided by law.

Id. at 1-2 (emphasis added). Similarly, proposal 176, entitled 

“A Proposal Relating to Power of Appointment to Fill Vacancies -

Tenure of Appointees,” stated, “The Governor shall fill all 

vacancies in public offices unless otherwise provided by this 

constitution and law, and his appointees shall serve until their 

successors are duly elected or appointed and qualified.” 

Proposal No. 176 (May 20, 1950) at 1, in 1950 Constitutional 

Convention materials, Box 12 (emphasis added) (on file with the 

Hawaii State Archives). But the Committee on Executive Powers 

and Functions rejected the language from both proposals, and no 

holdover provision was included in the committee proposal that 

was ultimately reported to the Committee on the Whole. See

Stand. Comm. Rep. No. 67, 1 Proceedings of the Constitutional 

Convention of Hawaii of 1950, at 215-22 (1960) (I Proceedings) 
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(containing copy of measure as referred by the Committee on 

Executive Powers and Functions to the Committee on the Whole).

Instead, the committee proposal included the interim 

appointments clause as it now appears in article V, section 6 of 

the Hawai‘i Constitution. This suggests a conscious decision on 

the part of the framers that 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. And while the legislature may certainly act 

to ensure these commissions are able to fulfill their 

administrative functions when the governor has not moved to make 

such an appointment, the framers do not appear to have intended 

that the legislature could deprive the governor of this core 

power. 

The dissent maintains that the framers’ rejection of 

the holdover provision does not demonstrate a preference for 

interim appointments, but instead indicates that the framers 

intended to leave the application of a holdover provision “open 

for legislative treatment as future conditions may require.” 

Dissent at 9 (quoting Stand. Comm. Rep. No. 67 in I Proceedings,

at 215). However, the language quoted by the dissent does not 

relate directly to either interim appointments or holdover 

provisions. Instead, it is a general statement that certain 
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specified matters should be left open for legislative treatment 

as required by future conditions.17 See Stand. Comm. Rep. No. 67 

in I Proceedings, at 215. Indeed, the very next sentence of 

Committee Report No. 67, after the passage quoted by the 

dissent, states the following: 

Your Committee believes that it is only through such 

delegation to the Legislature that the flexibility 

necessary to keep government in step with economic and 

social development is possible.

Id. (emphasis added). Thus, the drafters of the Committee 

Report expressly indicated that subjects left “open for 

legislative treatment” were those that had been delegated to the 

legislature. Id.

For example, the Committee stated that “[i]n case of a 

tie vote or a contested election, the selection of a Governor 

shall be determined in such manner as may be provided by law.” 

Id. at 216 (emphasis added). In regard to the Lieutenant 

Governor, the Committee stated that the Lieutenant Governor

would “perform such duties as may be prescribed by law.” Id.

(emphasis added). The Committee also recommended that the 

“Legislature by law allocate the usual duties of the Secretary

[of State] . . . to the office of Lieutenant Governor.” Id. at 

 

17 It is noted that the Committee Report relied upon by the dissent 

also states the following: “The fundamental principle upon which your 

Committee Proposal was drafted is that of concentration of executive power in 

the Governor, which would give the best government.” Stand. Comm. Rep. No. 

67 in I Proceedings, at 215.
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216-17 (emphasis added). As related to the principal 

departments in the executive branch, the Committee stated that 

“the number . . . shall be limited to not more than 20 and the 

Legislature shall be required to allocate the existing 

departments, boards and other agencies among and within the 20 . 

. . departments.” Id. at 217 (emphasis added). In regard to 

the leadership of these departments, the Committee recommended 

that “[e]ach . . . department shall be headed by a single 

executive unless otherwise provided by law.” Id. (emphasis 

added). Significantly, the Committee recommended that the 

members of quasi-judicial or quasi-legislative bodies, such as 

the PUC, should be protected from removal and that “restrictions 

on removal should be provided by law.” Id. at 217.

18 These 

 

18 The dissent maintains that because article V, section 6 delegates 

the manner of removal of PUC commissioners to the legislature, the 

legislature is empowered to prevent a vacancy from arising on the PUC. 

Dissent at 5-6. Thus, the dissent argues, the phrase “[e]ach member shall 

hold office until the member’s successor is appointed and qualified” in HRS 

§ 269-2(a) is in fact a restriction on the governor’s ability to remove a 

holdover PUC commissioner. Id. at 6-7; HRS § 269-2(a). First, this case 

turns on whether the position was “vacant” for the purposes of the interim 

appointment power, not on the governor’s ability to remove PUC commissioners, 

which the constitution specifies in article V, section 6 shall be provided by 

law unless otherwise prescribed by the constitution.

Second, the dissent’s conclusion that the phrase “shall hold 

office until the member’s successor is appointed and qualified” bears on 

removal is without basis and inconsistent with the manner in which HRS 

§§ 269-2 and 26-34 interrelate. HRS § 269-2(a) provides that PUC 

commissioners

shall be appointed in the manner prescribed in section 26-

34, except as otherwise provided in this section. . . . 

Section 26-34 shall not apply insofar as it relates to the 

number of terms and consecutive number of years a member 

(continued . . .)
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examples demonstrate that when the Committee intended to leave a

subject open for legislative treatment, it stated as much.

Moreover, all of these express delegations of 

authority to the legislature are embodied in article V of the 

Hawaii Constitution. Not part of the Committee Report, and not 

included in article V, is a delegation of authority to the 

legislature that it may provide by law restrictions on the 

governor’s interim appointment power. Thus, it appears clear 

that 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 as this authority was not “provided

by law” to the legislature by article V.

3. Interpreting HRS §§ 269-2 and 26-34 To Be Subject to the 

Interim Appointment Authority Preserves the Constitutional 

Balance of Power

Under longstanding canons of statutory construction, 

“if one construction would make it possible for a branch of 

 

(. . . continued)

can serve on the commission; provided that no member shall 

serve more than twelve consecutive years.

HRS § 269-2(a) (emphasis added). 

Notably absent from the listed derogations is removal. This is because 

the removal of PUC commissioners is governed by HRS § 26-34(d) and not by HRS 

§ 269-2(a). See HRS § 26-34(d) (“The governor may remove or suspend for 

cause any member of any board or commission after due notice and public 

hearing.”). To read HRS § 269-2(a) as bearing on removal is contrary to the 

legislature’s expressed intent to have HRS § 26-34(d) govern the removal of 

PUC commissioners. 
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government substantially to enhance its power in relation to 

another, while the opposite construction would not have such an 

effect, the principle of checks and balances would be better 

served by a choice of the latter interpretation.” Staebler v. 

Carter, 464 F.Supp. 585, 599–600 (D.D.C. 1979). From a 

functional standpoint, permitting the legislature to preclude a 

vacancy from arising upon the expiration of a PUC commissioner’s 

term would represent a significant shift in the balance of power 

between the branches of government. 

If, upon the expiration of a PUC commissioner’s term,

the governor is permitted to make an interim appointment that 

the legislature disapproves of, the legislature maintains the 

option of holding a special session in order to swiftly remove 

the interim office holder by rejecting the temporary appointment 

or simply adjourning without confirming it. See Haw. Const. 

art. V, § 6 (“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.” (emphasis added)); see also Sierra Club v. Castle & 

Cooke Homes Hawai‘i, Inc., 132 Hawai‘i 184, 196, 320 P.3d 849, 

861 (2013) (rejecting an interpretation of a statutory holdover 

provision that would allow a previously appointed commissioner 
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to remain in office after the senate has declined to confirm the 

member’s nomination).

By contrast, were we to allow the legislature to 

preclude a vacancy from arising upon the conclusion of a 

commissioner’s term, the governor would be without recourse to 

replace a holdover commissioner if the legislature refuses to 

confirm a new appointment. A holdover whom the governor does 

not wish to be in office could therefore serve until at least 

the end of the second regular legislative session after the 

expiration of the commissioner’s term, and possibly for a full 

second six-year term.19

This court has stated that “the subject of appointment 

of members to boards and commission must necessarily be 

considered to be the joint responsibility of the governor and 

senate.” Life of the Land v. Burns, 59 Haw. 244, 251, 580 P.2d 

405, 410 (1978). Permitting the legislature to prevent the 

governor from exercising a constitutional prerogative would 

represent a substantial diminishment in the executive power 

 

19 HRS § 26-34(b), which applies to the PUC unless HRS § 269-2 

provides otherwise, states that “a holdover member shall not hold office 

beyond the end of the second regular legislative session following the 

expiration of the member’s term of office.” HRS § 269-2(a) states that 

“Section 26-34 shall not apply insofar as it relates to the number of terms 

and consecutive number of years a member can serve on the commission; 

provided that no member shall serve more than twelve consecutive years.” We 

need not now decide whether the limitation on holdover service included in 

HRS § 26-34(b) is consistent with HRS § 269-2 and thus would be applicable to 

PUC commissioners.
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granted by the Hawai‘i Constitution, and it is questionable 

whether our constitution would allow such a rebalancing.

Contrary to the foregoing, the dissent asserts that

prohibiting the legislature from precluding a vacancy from 

arising unduly rebalances power in favor of the governor. See

Dissent at 21-22. This is because, the dissent argues, terms of 

office for PUC commissioners always expire when the senate is 

not in session. Id. at 22. The dissent hypothesizes that the 

governor could “refrain from nominating individuals for senate 

confirmation while the senate is in session and utilize the 

interim appointment power instead, wholly depriving the senate 

of a role in the appointment process.” Id. First, this 

ostensible threat is not a product of our interpretation. As 

the dissent acknowledges, at the very least a holdover member 

may not remain in office “beyond the end of the second regular 

legislative session following the expiration of the member’s 

term of office.” Id. at 22 n.14 (emphasis added) (quoting HRS 

§ 26-34(b)). And, as the dissent also acknowledges, “[o]nce 

that period expires, a vacancy in office is created allowing the 

governor to utilize the interim appointment power if the senate 

is not in session pursuant to article V, section 6.” Id. at 22-

23 n.14. Thus, the holdover period for PUC commissioners, like 

the regular term of office, would always expire while the senate 

is not in session. Accordingly, even under the dissent’s 
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position, the governor could “deprive the senate of a role in 

the appointment process.”20 

However, the threat posited by the dissent is 

illusory. As discussed above, the legislature maintains the 

option of holding a special session in order to remove the 

interim office holder. The legislature may remove the interim 

appointee by rejecting the temporary appointment or by 

adjourning the special session without confirming the appointee. 

Haw. Const. art. V, § 6. Rather than revealing a rebalancing of 

power, the dissent’s hypothetical merely demonstrates how the 

checks and balances embodied in our constitution operate between 

the branches of government. Furthermore, the expiration of the 

PUC commissioner’s term is set by statute. See HRS § 26-34 

(“Unless otherwise provided by law, each term shall commence on 

July 1 and expire on June 30.”). If the legislature determines 

that the expiration of the term outside of the legislative 

session leads to executive overreach, it may simply change when 

the term expires. Haw. Const. art. V, § 6 (“The term of office 

 

20 Additionally, this contended “threat” is not unique to holdovers. 

If the interim appointment power was limited to vacancies caused by death, 

incapacity, resignation, or removal that occurred outside of the legislative 

session and the governor’s interim appointee is not confirmed by the senate, 

the appointee’s commission would expire at the end of the next session of the 

senate. Haw. Const. art. V, § 6 (“[An interim appointee’s] commission . . . 

shall expire, unless such appointment is confirmed, at the end of the next 

session of the senate.”). Thus, even the most constricted view of the 

interim appointment power poses the purported threat to the balance of power 

that the dissent surmises. 
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and removal of [board, commission, or other body] members shall 

be as provided by law.”). 

B. The Legislative History and Structure of HRS §§ 26-34 and 

269-2 Indicate Holdover Commissioners Serve in an Acting 

Capacity that Does Not Preclude a Vacancy

We now turn to HRS §§ 26-34 and 269-2 to determine 

whether the legislature intended the holdover provisions to 

prevent the governor from exercising the interim appointment 

power upon the expiration of a commissioner’s term--a result 

that, as discussed, would be constitutionally suspect. Based on 

the structure and legislative history of the statutes, we 

conclude that holdover members of commissions serve in an acting 

capacity, leaving the office of in-term commissioner vacant for 

purposes of the governor’s interim appointment power.

1. The Language and Structure of Statutes Governing Board 

Appointments Suggest Holdovers Serve in an Acting Capacity

There are textual and structural indications in the 

statutes governing the appointment of PUC commissioners that 

holdover members serve in an acting capacity that does not 

preclude a vacancy. HRS § 269-2(a) specifies that a PUC

commissioner “shall hold office until the member’s successor is 

appointed and qualified.”21 Notably, the provision makes no 

 

21 Although this court has stated that “where a statute contains the 

word ‘shall,’ the provision generally will be construed as mandatory,” 

Malahoff v. Saito, 111 Hawai‘i 168, 191, 140 P.3d 401, 424 (2006), we have 

also long held that “this court may depart from a plain reading of a statute 

(continued . . .)
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mention of senate confirmation, but instead conditions the end 

of a holdover members service on “appoint[ment] and 

qualif[ication].” This is significant because appointment 

occurs both in the normal senate confirmation process and when 

the interim appointment power is exercised. See Haw. Const. 

art. V, § 6 (“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 . . .” (emphasis added); id. (“The 

governor shall nominate and, by and with the advice and consent 

of the senate, appoint all officers for whose election or 

appointment provision is not otherwise provided for by this 

constitution or by law.” (emphasis added)). 

By contrast, the holdover provisions applicable to 

members of the Board of Education and the Board of Regents for 

the University of Hawai‘i--for which article X, sections 2 and 6 

specify that the governor’s appointment authority shall be “as 

provided by law”--both clearly state that “[e]very member may 

 

(. . . continued)

where a literal interpretation would lead to absurd and/or unjust results.” 

Iddings v. Mee–Lee, 82 Hawai‘i 1, 15, 919 P.2d 263, 277 (1996). It is selfevident that a commissioner may not be made to hold office against the 

commissioner’s will, see U.S. Const. amend. XIII, and we do not believe the 

legislature would provide a holdover commissioner with more protections from 

removal than an in-term commissioner. 
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serve beyond the expiration date of the member’s term of 

appointment until the member’s successor has been appointed by 

the governor and confirmed by the senate.” HRS §§ 302A-123(d)

(Supp. 2018), 304A-104(a) (2007) (emphasis added).22 That the 

legislature chose to use the term “appointed” rather than 

“confirmed” in HRS § 269-2(a) suggests a holdover’s service may 

be ended through either a full-term appointment or an interim 

appointment--the latter of which would occur only if the office 

of in-term PUC commissioner is vacant upon the expiration of a 

commissioner’s term. See Agustin v. Dan Ostrow Const. Co., 64 

Haw. 80, 83, 636 P.2d 1348, 1351 (“[D]ifferent words in a 

statute are presumed to have different meanings.”). Thus, the 

text of HRS § 269-2(a)’s holdover provision suggests that a 

holdover commissioner does not occupy the office of in-term 

commissioner, but rather serves in an acting capacity that does 

not prevent a vacancy from arising.

The dissent contends that our interpretation of the 

word “qualified” in HRS § 269-2(a) should encompass senate 

confirmation. Dissent at 19. According to the dissent, our 

interpretation should be controlled by the language of the 

Organic Act, which established the Territory of Hawaii. Id.;

 

22 HRS § 304A-104(a) was amended in 2019. Act 172 (June 27, 2019).

These amendments do not affect our analysis.
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Organic Act of April 30, 1900, ch. 339, 31 Stat. 141. The 

Organic Act uses “appointed and qualified” to mean appointed by 

the governor and confirmed by the senate, asserts the dissent.

Dissent at 19-20. Thus, the dissent theorizes that the Act was 

the origin of the language used in the PUC holdover provision 

and the general holdover provision, and it therefore concludes 

that the language from the Organic Act should control. Id. at 

10-11.

Notwithstanding the uncertainty as to the origins of 

the language used in HRS §§ 269-2(a) or 26-34, upon inspection, 

there is no indication that the language of the Organic Act 

conflates “qualification” with “confirmation.” See 31 Stat. 

141, 156-157. Rather, within the very same section referenced 

by the dissent, the Organic Act uses the term “confirmed” in one 

sentence and the term “qualified” in another.23 Id. There is no 

 

23 Section 80 of the Organic Act, which governs the appointment, 

removal, tenure, and salaries of officers states in relevant part as follows: 

[T]he governor shall nominate and, by and with the advice 

and consent of the senate of the Territory of Hawaii, 

appoint the attorney-general, treasurer, . . . and any 

other boards of a public character that may be created by 

law; and he may make such appointments when the senate is 

not in session by granting commissions, which shall, unless 

such appointments are confirmed, expire at the end of the 

next session of the senate. He may, by and with the advice 

and consent of the senate of the Territory of Hawaii, 

remove from office any of such officers. All such officers 

shall hold office for four years and until their successors 

are appointed and qualified, unless sooner removed, except 

the commissioners of public instruction and the members of 

(continued . . .)
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evidence overcoming the presumption that Congress intended these 

“different words . . . to have different meanings.”

24 Agustin, 

64 Haw. at 83, 636 P.2d at 1351. 

Additionally, with the exception of HRS § 26-34(c)’s 

procedure for filling vacancies that arise from a death, 

resignation, or removal that takes place during a commissioner’s 

term, neither HRS § 26-34 nor HRS § 269-2 explicitly specifies 

when the governor shall appoint new board and commission 

members. The statutes state that board members shall be 

appointed to terms of a specific number of years, however, 

implying that members may be replaced following the expiration 

of this period.25 Some qualitative difference exists, then, 

 

(. . . continued)

said boards, whose terms of office shall be as provided by 

the laws of the Territory of Hawaii. 

31 Stat. 141, 156 (emphases added).

24 Morita, similar to the dissent, argues that the term “qualified” 

in HRS § 269-2(a) means fulfilling all legal requirements to take office, 

which she maintains include senate confirmation. Senate confirmation is not 

a legal requirement for an interim appointee to take office, however. As 

stated, when the interim appointment power is used, an individual takes 

office before senate confirmation occurs. Thus, an official is qualified 

once an interim appointment has occurred and the oath of office has been 

administered provided the individual satisfies all other requirements for the 

office. See, e.g., HRS § 269-2(a) (requiring that PUC commissioners have 

“experience in accounting, business, engineering, government, finance, law, 

or other similar fields” and prohibiting commissioners from holding other 

office or employment and from owning stock in a public utility).

25 As related above, HRS § 26-34(a) states in relevant part, “Unless 

otherwise provided by this chapter or by law hereafter enacted, the terms of 

the members shall be for four years[.]” HRS § 269-2(a) provides in relevant 

part, “All members shall be appointed for terms of six years each[.]”
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between a member’s in-term service--during which the member 

cannot be replaced absent death, resignation, or removal from 

office--and a member’s out-of-term holdover service, during 

which a successor may be appointed. The distinction may be 

attributed to holdover members serving in an acting capacity, 

leaving the office of the in-term commission member vacant and 

available for appointment. This reading is further supported by 

the legislative history that is available from the enactment of 

the holdover provisions appearing in HRS §§ 26-34(b) and 269-

2(a).

2. The “Acting Capacity” Interpretation of HRS §§ 269-2 and 

26-34 is Consistent with Indications of Legislative Intent

Legislative history gives us limited insight into the 

intended interaction of the statutory holdover provisions and 

the governor’s interim appointment power. The standing 

committee and conference reports from when the legislature 

enacted the 1976 legislation that added the holdover provision 

for the PUC to HRS § 269-2(a) made no mention of the clause as 

it relates to interim appointments (nor indeed did it reference 

the holdover provision at all). See Conf. Comm. Rep. No. 46, in 

1976 Senate Journal, at 895-96, 1976 House Journal, at 1155-56; 

S. Stand. Comm. Rep. No. 513, in 1976 Senate Journal, at 1104-

06; S. Stand. Comm. Rep. No. 654, in 1976 Senate Journal, at
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1172-74; H. Stand. Comm. Rep. No. 334, in 1976 House Journal, at

1424-26.

However, the 1984 committee reports from when the 

legislature added the similar holdover provision applicable to

all members of commissions or boards to HRS § 26-34 indicate 

that the addition was made for largely administrative purposes. 

See S. Stand. Comm. Rep. No. 1725, in 1984 Senate Journal, at

1087; H. Stand. Comm. Rep. No. 604, in 1984 House Journal, at

1148. The House of Representatives standing committee report 

states that the change was based on testimony from the State 

Planning Council on Developmental Disabilities indicating that 

logistical problems arose when less than a full complement of 

commission members were available. H. Stand. Comm. Rep. No. 

604, in 1984 House Journal, at 1148. The apparent implication 

of the testimony is that certain commissions experienced 

difficulties fulfilling their duties when a vacancy occurred and 

the governor did not exercise appointment authority, as such 

problems would not arise when the governor acted promptly to 

fill a vacancy. This would indicate that the holdover 

provisions are meant to address situations in which the governor 
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37

has not acted to fill a vacancy, and they are not meant to 

prevent the governor from making such an appointment.26 

There is no suggestion in the history of the two 

statutes that the legislature intended the 1976 or 1982 

legislation to limit the governor’s interim appointment power, 

and, indeed, it is doubtful that the governor would have signed 

the respective bills if the governor believed the statutes 

diminished executive authority in this regard. This court will 

not read such a sweeping rebalancing of power in what appears to 

be a minor administrative accommodation. See Whitman v. Am. 

Trucking Assocs., 531 U.S. 457, 468 (2001) (noting that 

legislatures do not “hide elephants in mouseholes”).

Indeed, when considering a nearly directly analogous 

situation, the U.S. Court of Appeals for the D.C. Circuit 

 

26 The dissent claims this infringement of the governor’s interim 

appoint power was precisely the purpose of the holdover provisions and cites 

the governor’s practice of nominating prospective board and commission 

members for service during the legislative sessions preceding the 

commencement of their terms in office as evidence that holdover provisions 

preclude the governor from making an interim appointment. Dissent at 8. The 

fact that the governor generally nominates prospective board and commission 

members in this manner does not limit or define the governor’s interim 

appointment power. Indeed, the governor has duly exercised the interim 

appointment power to fill a position after the natural expiration of the 

preceding holder’s term in various circumstances. See Press Release, Hawaii 

Governor’s Office, Governor Appoints 3 Members to Board of Land and Natural 

Resources, (July 11, 2014) https://dlnr.hawaii.gov/wp-content/uploads

/2012/12/GOV-NR-BLNR-Appointments-7-11-14.pdf [https://perma.cc/69DL-TVWF]; 

Press Release, Hawaii Governor’s Office, Governor appoints Edmund (Fred) Hyun 

as interim chair of the Hawaii Paroling Authority, (Sept. 6, 2016) 

https://governor.hawaii.gov/newsroom/governors-office-news-release-governorappoints-edmund-fred-hyun-as-interim-chair-of-the-hawaii-paroling-authority/

[https://perma.cc/3U64-WDXF].
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declined to adopt such a reading of a statutory holdover 

provision in the organic act of the National Credit Union 

Administration (NCUA) because the legislative history suggested 

the clause was intended for the same administrative purposes 

involved here. Swan v. Clinton, 100 F.3d 973, 985–86 (D.C. Cir. 

1996). In concluding that it was unnecessary to determine 

whether a vacancy existed because the holdover board member no 

longer enjoyed protections against removal by the president 

following the expiration of the member’s enumerated term, the 

D.C. Circuit relied in part on the lack of obvious legislative 

intent to curtail the president’s constitutional authority:

Removal protection for holdover members might be necessary 

if the purpose of the holdover clause were not just to 

prevent gaps in agency leadership generally, but more 

specifically to prevent gaps from occurring during the time 

it takes the Senate to confirm a successor--in other words, 

if the purpose of the holdover clause was to prevent a 

successor from being appointed via the recess appointment 

clause. But there is no indication in the language of the 

NCUA statute or the legislative history of the 1978 

amendments that Congress intended the holdover clause to 

serve any such purpose of precluding recess appointments. 

Cf. Staebler [v. Carter], 464 F.Supp. [585,] 592 [(D.D.C. 

1979)] (although several congressional reports describe 

holdover clauses as allowing the Senate an opportunity to 

confirm successor officials, “in none of these reports is 

there any indication that the Committees considered, much 

less that they intended to rule out, the constitutionallyprescribed recess appointment option”). And we are 

unwilling to infer that the NCUA statute precludes the 

President from exercising a constitutionally granted power 

absent clear evidence that this was Congress’ intent.

Id. (emphases added). 

Similarly, in Staebler v. Carter, the U.S. District 

Court for the District of Columbia considered whether a holdover 

provision of the Federal Elections Campaign Act, 2 U.S.C. 
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39

§ 437c(a)(2)(B), prevented the president from making an 

appointment pursuant to the constitutional recess appointment 

power following the expiration of a federal election 

commissioner’s enumerated term. 464 F.Supp. at 588. As here, 

the plaintiff argued that a vacancy did not arise upon the 

expiration of the enumerated term and that a replacement could 

be “appointed only through nomination by the President and 

confirmation by the Senate.” Id. at 589. In rejecting this 

argument, the court observed that 

there is no basis either in the language of the statute or 

in its legislative history to support the conclusion that 

Congress meant to rein in the President in such an 

unprecedented manner. In the absence of a clearlyexpressed legislative intent, the Court will not speculate 

that the Congress sought to achieve a result which would be 

both unusual and probably beyond its constitutional power.

Id. at 591. Thus, the district court found no reason to 

interpret the holdover statute in a way that precluded a 

vacancy--which would result in serious questions about its 

constitutionality--because the legislature did not evince any 

manifest intention to limit the executive’s interim appointment 

authority. See also id. at 592 (“The Court finds it difficult 

to believe that, had the Congress intended to take the 

significant step of attempting to curtail the President’s 

constitutional recess appointment power, or even to legislate in 

the area of that power, it would not have considered the matter 
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40

with more deliberation or failed to declare its purpose with 

greater directness and precision.”).

Just as in Swan and Staebler, here “there is no 

indication in the language . . . or the legislative history” of 

HRS § 269-2(a) that the legislature “intended the holdover 

clause to serve any such purpose of precluding recess 

appointments.” Swan, 100 F.3d at 985–86. This court is

likewise “unwilling to infer that the . . . statute precludes 

the [governor] from exercising a constitutionally granted power 

absent clear evidence that this was [the legislature’s] 

intent.”27 Id.

IV. CONCLUSION

In sum, the language, structure, and legislative 

history of the holdover provisions in HRS §§ 26-34(b) and 269-

2(a) do not evince an intention to limit the governor’s 

authority to make interim appointments upon the expiration of a 

PUC commisioner’s term if the senate is not in session, and the 

statutes would be highly suspect as a constitutional matter if 

they sought to achieve this outcome. We therefore hold that a 

 

27 It is noted that the Senate unanimously confirmed Gorak’s 

successor, James P. Griffin, who was also appointed by Governor Ige pursuant 

to the interim appointment power. If no vacancy existed at the time Governor 

Ige appointed Gorak, it would follow that no vacancy existed at the time 

Governor Ige appointed Griffin because Champley, Gorak’s predecessor, neither 

relinquished office nor reached either of the statutory limits that may be 

applicable to the length of his holdover service. See supra note 19. It is 

also noted that the Senate did not participate in this appeal. 
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41

vacancy existed upon the expiration of Champley’s term as PUC

commissioner, and Governor Ige was thus entitled to appoint 

Gorak on an interim basis pursuant to article V, section 6 of 

the Hawai‘i Constitution.28 Accordingly, the judgment of the 

circuit court is affirmed.

Harold Bronstein

for appellant

Deirdre Marie-Iha

for appellee

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson 

 

28 Given this disposition, we need not address the circuit court’s 

dismissal of Morita’s claim for declaratory relief based on a lack of 

standing.