Shawn Smith is scheduled to attend Friday’s meeting of the state Board of Land and Natural Resources as the board’s representative from Kaua`i. But with the state Senate having met last Tuesday in a special session, in which Smith’s appointment was not considered, can Smith continue to serve in this position?
The governor’s office says yes. The Senate clerk’s office says yes. The press officer for the Department of Land and Natural Resources did not respond to a request for comment.
Yet the plain language of the state Constitution seems to say no.
Gov. Neil Abercrombie appointed Smith, a Kaua`i businessman and former police officer, to the Land Board in June, after the close of the regular 2013 legislative session. The Kaua`i Land Board seat had been vacant for a year. The appointment is an interim one, meaning that it is good only until the Senate is able to confirm him for a full four-year term.
Section 3, Article V of the Constitution sets forth the procedure by which interim appointments are to be confirmed: “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.”
The Senate met in special session on August 6 to confirm the nomination of James Ashford to the District Court of the First Circuit. At no time did it take up the nomination of Smith to the Land Board – or any other of the 17 interim appointments the governor has made since the end of the regular session of the Legislature.
The reason? The Senate clerk’s office says that the special session was called to confirm a judicial nomination – a process addressed elsewhere in the Constitution (Section 10, Article III) – “and we do not take up interim appointments at that time. They continue until a regular session of the Legislature.” The spokesperson did note, however, that during one of the special sessions called in 2007 to address legislation intended to allow the inter-island superferry to operate, the Senate did take up interim appointments – including two Cabinet-level appointees and dozens of nominations to boards and commissions. Other special sessions involving both chambers of the Legislature have seen Senate confirmations of gubernatorial appointments as well.
In its simplest terms, the issue boils down to this: When the Senate is in special session to confirm one or more judicial nominees, is it limited only to that purpose?
Courts in Hawai`i have never addressed the question. Perhaps the closest approach came in 2010, when the Sierra Club, Hawai`i Chapter, challenged the participation of interim appointee Charles Jencks in the Land Use Commission’s approval of a boundary amendment to allow development of the Koa Ridge project proposed by Castle & Cooke Homes Hawai`i, Inc. The Sierra Club alleged that Jencks and another commissioner, Duane Kanuha, should have been disqualified from voting: Kanuha because his nomination had been specifically rejected by the Senate in the regular session, but he had been retained by then-Gov. Linda Lingle as a holdover appointee; and Jencks, because the Senate, which had met twice in special sessions to confirm judicial nominees since the date of his appointment, had not confirmed him as well. The Attorney General, representing the Office of Planning, and Castle & Cooke argued to the LUC that the special sessions did not allow consideration of interim appointments and, what’s more, the Sierra Club’s objections to Jencks were not timely. The LUC agreed. When the Sierra Club appealed the Koa Ridge approval in court, it raised only the matter of Kanuha’s presence on the commission.
The constitutional language regarding Senate confirmation of interim appointments has no qualification on the sessions. It does not, for example, say that the Senate must confirm only in a regular session or a special session that is called when the House also is in session.
Similarly, the constitutional language concerning special sessions for judicial nominations does not say that the sessions must address exclusively judicial appointments. To quote it directly: “At the written request of two-thirds of the members of the senate, the president of the senate shall convene the senate in special session for the purpose of carrying out its responsibility established by Section 3 of Article VI,” the section that provides for the advice and consent of the Senate on judicial nominees. Nothing in that language would seem to prevent the Senate from taking up interim appointments during such special sessions.
However, the Attorney General has opined, as recently as this year, that the Senate should be precluded from taking up interim appointments in the special sessions called for consideration of judicial nominees.
In the Koa Ridge case, deputy attorney general Bryan Yee specifically referenced a judiciary committee report on the 1980 bill (S.B. 1973-80) that amended the Constitution to allow the Senate to convene on its own “for the purpose of considering any gubernatorial nomination to fill a judicial vacancy.”
The need for the amendment arose after the Constitution was changed in 1978 to require the Senate to confirm or deny a judicial nomination within 30 days of receiving it from the governor. Otherwise, the nomination would be deemed approved.
If Smith is off the Land Board, Abercrombie could appoint someone else to fill the post until the Senate meets again. But he could not re-appoint Smith to the board as an interim member. The Constitution states that an interim appointee “shall not be eligible for another interim appointment to such office if the appointment failed to be confirmed by the senate.”
The same would apply to several important interim appointees, including Genevieve Salmonson of the Office of Environmental Quality Control, Ulalia Woodside of the Natural Area Reserves System Commission, and Douglas Schenk of the Agribusiness Development Corporation board.