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From Senate President Ron Kouchi to Attorney General Douglas Chin Requesting a Formal Legal Opinion

The following letter dated July 6, 2016 from Senate President Ron Kouchi to Attorney General Douglas Chin requesting a formal legal opinion on Article V, Section 6, Hawaii State Constitution vis-à-vis HRS Sections 26-34 and 269-2 was sent to Hawaii Senators today:

Senate to Attorney GeneralTo: Douglas S. Chin, Esq., Attorney General

RE: Request for Formal Legal Opinion: Public Utilities Commission (PUC) Article V, Section 6 Hawaii State Constitution vis-à-vis HRS sections 26-34 and 269-2

Dear Attorney General Chin:

I am informed that by letter dated June 27, 2016, you provided Governor David Y. Ige with an informal opinion relating to the Public Utilities Commission – Interim Appointment and by letter dated June 30, 2016, you essentially reissued the June 27, 2016 informal opinion to Senator Rosalyn Baker.

The issue presented by Governor Ige and Senator Baker was whether Governor Ige had the authority to make an interim appointment naming Thomas Gorak to the PUC to replace Commissioner Michael Champley, a de jure holdover commissioner pursuant to statute, after the Hawaii State Legislature, including the Hawaii State Senate, had adjourned sine die.

You assert that Hawaii State Constitution Article V, Section 6 confers interim appointing authority to Governor Ige and this authority cannot be limited by statute (HRS sections 26-34 and 269-2).

Questions presented:

  1. You assert that Article V, Section 6 is “self-executing; it does not contain the phrase “as provided by law”, and therefore, “the holdover provision contained in HRS section 269-2 cannot be read to qualify the self-executing powers conferred upon” Governor Ige to make an interim appointment. If Article V, Section 6 contains the phrase “as provided by law” in relation to the “term of office and removal of such members”, can Article V, Section 6 be limited by HRS sections 26-34 and 269-2?
  2. Assuming that Article V, Section 6 contains the phrase “as provided by law” in determining the “term of office and removal of such members”, does the language contained in HRS section 269-2(a) stating that the PUC members “shall be appointed in the manner prescribed in section 26-34” limit the governor’s interim appointing authority in Article V, Section 6?
  3. Assuming that Article V, Section 6 contains the phrase “as provided by law” in determining the “term of office and removal of such members”, does HRS section 26-34, Selection and terms of members of boards and commissions, prohibit replacement of a de jure holdover member? See, HRS section 26-34(b).
  4. Assuming that Article V, Section 6 is indeed “self-executing” and does not contain the phrase “as provided by law”, are HRS section 269-2(a), requiring the appointment of members “in the manner prescribed in section 26-34” and HRS section 26-34(b) unconstitutional?
  5. In light of your informal opinions via letters dated June 27, 2016 and June 30, 2016, are Attorney General Opinions 73-7 and 80-4 null, void and overturned?
  6. Assuming that Article V, Section 6 is indeed “self-executing” and does not contain the phrase “as provided by law”, are the at least fifteen other holdover statutes relating to various boards and commissions likewise unconstitutional?

In responding to the questions presented, please state your reasons therefore with specificity and detail, in order that this office will be able to properly inform the Senate in exercise of all of its rights and responsibilities as provided by law.

As time is of the essence, request is made that a formal Attorney General Opinion be issued forthwith. Thank you for your anticipated cooperation.

Sincerely,
RONALD D. KOUCHI

Senate President, 8th Senatorial District

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