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Senate Vacancies, And Why Governors Must Pick Temporary Appointees Chosen By Political Parties

Earlier, we wrote about what Hawaii law requires when one of its U.S. Senate seats becomes vacant. But how did Hawaii's statute -- a minority rule, but not a complete outlier -- come to be? And is a rule that cabins a governor's discretion by limiting the picks for a temporary appointee to those selected by a political party even constitutional, or democratic? For more on the latter issue -- do the Hawaii Democratic Party's rules allow for a transparent selection process -- see here.

In this post, my colleage Robert Thomas and I explore those questions.

The Original Statute

Soon after statehood in 1959, Hawaii needed to adopt rules to address what would happen if either of its two new U.S. Senate seats became vacant. In 1961, the Hawaii Legislature passed Act 123 which created a new section in the Hawaii Revised Statutes which provided that vacancies would be temporarily filled by the Governor, without any requirement of input from others, with the only limitation that the temporary appointee be a member of the same political party as the Senator causing the vacancy:

When a vacancy occurs in the office of United States Senator such vacancy shall be filled for the unexpired term at the following state general election, provided that such vacancy occurs not less than sixty days prior to the date of the primary for nominating candidates to be voted for at such election; otherwise at the state general election next following. The Governor shall issue a proclamation designating the election for filling such vacancy. Pending such election the Governor shall make a temporary appointment to fill the vacancy and the person so appointed shall serve until the election and qualification of the person duly elected to fill such vacancy and shall be a registered member of the same political party as the Senator causing the vacancy. All candidates for such unexpired term shall be nominated and elected in accordance with the provisions of this chapter.

After the Constitutional Convention of 1968, the Legislature revised parts of the state elections code, but the Senate vacancy provision remained unchanged until 2007. This is likely because the system worked well enough when Senator Spark Matsunaga died in office in 1990, and Daniel Akaka was appointed by Governor Ben Cayetano to temporarily occupy the seat until the 1990 election, when Akaka was selected by the voters to finish Matsunaga's term. They were all Democrats. 

A Changing Dynamic

From 1962 to 2002, every Hawaii governor was a member of the Democratic Party. But in 2002, the voters in the bluest of blue states elected Linda Lingle as the first Republican governor since Bill Quinn got caught up in the Democratic wave in 1962. By 2007, Hawaii's two senators (Inouye and Akaka) were advancing in age, and two years earlier, Governor Lingle had bucked the Democratic Party by appointing Bev Harbin to the state House of Representatives to fill the seat of a Democratic House member who left  government for the private sector. Harbin was a Democrat at the time of the appointment, but had switched party affliation only days after the outgoing House member announced that he would be resigning.

2007 Amendment

In 2007, the Legislature adopted Act 57, which amended the above statute to its curent form. The statute now requires the Governor pick a temporary appointee from a list provided by the political party of the Senator causing the vacancy. Governor Lingle vetoed the bill:

[Under the Bill,] Prospective appointees must have been members of the incumbent's party for at least six months prior to appointment, and incumbents who were not members of any political party could only be replaced by other non-party members.

The goal of the present law is to fill vacancies in the State Legislature and the United States Senate in a timely manner when such vacancies occur. These vacancies in elective office are appropriately filled by the Governor, who is elected by the public at large, and, as such, is accountable to the public. The process for filling vacancies in the United States Senate and the Hawaii State Legislature has been in place since 1970 and has not been shown to have compromised the integrity of the election process.

This bill places the ability for determining who may be appointed by the Governor with the political party leadership of the vacating office holder. This is in spite of the fact that these individuals are not elected by the public and, as such, are not accountable to them.

Additionally, the bill, without any stated rationale, narrows the field of qualified candidates that the political party can consider to those who have been registered members of that party for at least six months prior to the appointment. Such a provision fails to recognize that this may unreasonably restrict the pool of potential candidates as the majority of people who personally and philosophically associate themselves with a political party and vote along party lines may not meet this requirement.

The Legislature overrode the veto.

Not Quite Outliers

Does this requirement usurp the Governor's powers, and is it anti-democratic as Lingle's veto message suggested? Remember that the Seventeenth Amendment to the U.S. Constitution requires the voters to make the choice of whom to serve out the remainder of the term, but gives state legislatures the ability to empower the state "executive authority" to make a temporary appointment pending the election. Thus, the Governor's power to select a temporary appointee is a function of legislative grace, not constitutional right.

Other states handle U.S. Senate vacancies differently. For a summary of the varying procedures, see here. Like Hawaii, Utah and Wyoming require their governors to make the temporary appointment from a list provided by the political party of the departed Senator. Arizona requires the governor to appoint from the same political party, but does not provide for the parties to restrict the appointee to a party-selected list. Some states, like Alaska, Oregon and Wisconsin, require a special election.

Constitutional Choices and "Good" Policy

But is Hawaii's requirement that the Governor choose from a list selected by a political party constitutional? Although we can find no reported cases one way or the other, at least one constitutional law scholar argues that such schemes are not because they violate the text of the Seventeenth Amendment:

There is a very strong textual argument that the Seventeenth Amendment prevents the [ ] Legislature from dictating the Governor's specific personnel choices in making a temporary Senate appointment: The Amendment's language differentiates between a state "legislature" and a state "executive" authority, and allows a state legislature not to make or constrain any temporary appointments itself, but rather only to "empower the [state] executive to make [the] appointment."

In other words, the Amendment, by its terms, creates potential appointment power only in Governors; it does not authorize legislatures to participate in such appointment decisions, beyond simply determining whether the Governors should be allowed to make temporary appointments or not.

Vikram Amar, Are Statutes Constraining Gubernatorial Power to Make Temporary Appointments to the United States Senate Constitutional Under the Seventeenth Amendment?, 35 Hast. Const. L.Q. 727, 729-30 (2008) (citing U.S. Const. amend. XVII).

Another scholar, however, argues for the opposite result, although he bases his conclusion more on good policy than strict adherence to the Amendment's language:

My own view is that we (and the perhaps mythic "We") would agree that in a political system where political parties play, for good and sometimes for ill, such an important role in structuring what is politically (im)possible, it would be foolish indeed to ignore the party identity of the senator whose death or resignation has necessitated the invocation of the Seventeenth Amendment's provision for gubernatorial appointment of replacements. Especially in our own era, where the two major parties are as ideologically divided as has been the case in American politics for at least the past century, the presumptive majorities that voted for either the democratic or republican senator to be replaced could well feel a sense of justified outrage if a governor used his or her authority to negate that preference and fill the vacant seat with a senator from the opposite party (who would almost certainly be substantially to the right or the left of the prior senator).

To be sure, one can conjure up scenarios whereby the now-absent senator was narrowly reelected only because of name recognition or a last-moment scandal that discredited the favored opponent. But, after all, we are talking only about filling a vacancy until the next scheduled election -- and, in some cases, even before then if a special election were called. If the majority is ready to shift its preferences, it will have that opportunity in no less than twenty-four months and, most often, even earlier. There is no good reason for an "opposite-party governor" to anticipate that change and, in effect, negate the consequences of the closest previous election with regard to expressed party preference.

See Sanford Levinson, Political Party and Senatorial Succession: A Response to Vikram Amar on How to Best Interpret the Seventeenth Amendment, 35 Hast. Const. L.Q. 713, 717-18 (2008) (footnotes omitted). 

Final Thoughts

While the validity of Hawaii's political party requirement remains an open question, the U.S. Court of Appeals for the Seventh Circuit issued an interesting opinion that discusses Illinois' vacancy procedures and the Seventeenth Amendment, brought about in that case by the election of President Obama while he was occupying a Senate seat:

Our analysis of the Seventeenth Amendment led to the conclusion that a state must hold an election each time that a vacancy occurs in its Senate delegation, so that the people of the state can elect a replacement senator. To ensure that such an election takes place, the executive officer of the state is required by the Constitution to issue a writ of election. The timing and mechanics of the special election are governed by state law, as contemplated by the Elections Clause of the Constitution and the final phrase of the Seventeenth Amendment's second paragraph. Finally, the Seventeenth Amendment permits the state legislature to empower the state executive to fill a Senate vacancy temporarily by appointment, until a special election takes place. 

Judge v. Quinn, No. 10-2836 (7th Cir. Sep. 24, 2010). The Supreme Court declined to review the case.

News Flash - Renewable Energy Tax Credit Rule Change and Litigation

The State of Hawaii changed the rules pertaining to tax credits for renewable energy systems.  We've prepared a quick news-blast.  Relatedly, the Sierra Club recently filed suit to declare these rule changes void, here.

Damon Key Legal Alert: Hawaii Renewable Energy Technologies Income Tax Credits (Dec. 2012)

 

 

Replacing an Icon - Hawaii's Process for Filling a U.S. Senate Vacancy

Re-posting from www.inversecondemnation.com.

Hawaii's senior U.S. Senator, Daniel K. Inouye died today. We can't add much to the remembrances pouring in about this war hero, trailblazer, and political icon, so we'll just address what we know, the law regarding how the vacancy in the U.S. Senate will be filled. Mark Murakami and I did some quick research, and here is what we came up with.

The starting point is the Seventeenth Amendment to the U.S. Constitution, which provides, in relevant part:

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

The "executive authority" under the Hawaii Constitition (article V, § 1) is the Governor. The Hawaii legislature has empowered the Governor to make a temporary appointment to fll the office in Haw. Rev. Stat § 17-1, as follows.

§ 17-1.  United States senator.

When a vacancy occurs in the office of United States senator, the vacancy shall be filled for the unexpired term at the following state general election; provided that the vacancy occurs not later than 4:30 p.m. on the sixtieth day prior to the primary for nominating candidates to be voted for at the election; otherwise at the state general election next following. The chief election officer shall issue a proclamation designating the election for filling the vacancy. Pending the election, the governor shall make a temporary appointment to fill the vacancy by selecting a person from a list of three prospective appointees submitted by the same political party as the prior incumbent. The appointee shall serve until the election and qualification of the person duly elected to fill the vacancy and shall be, at the time of appointment, and shall have been, for at least six months immediately prior to the appointment, a member of the same political party as the prior incumbent. The appointee shall be a resident of the state. If the prior incumbent was not a member of any political party, the governor shall appoint a person who is not and has not been, for at least six months immediately prior to the appointment, a member of any political party. All candidates for the unexpired term shall be nominated and elected in accordance with this title.

So, the next step is for the Chief Election Officer, Scott Nago, to issue a proclamation designating the election for filling the vacancy, presumably the General Election in 2014. But, it is only for the unexpired term of Senator Inouye whose term was going to expire in 2016. Senator Inouye was a Democrat, so after Mr. Nago makes the proclamation, the Democratic Party of the State of Hawaii must provide a list of three prospective appointees for the appointment and Governor Abercrombie must select the new temporary senator.

If the Governor picks a sitting member of the U.S. House of Representatives, pursuant to art. 1 of the U.S. Constitution and Haw. Rev. Stat. § 17-2, a special election is required to fill that vacancy. 

If the Governor picks himself to fille the Inouye seat, then the Hawaii Lieutenant Governor would become the Governor under Hawaii State Constitution art. V, section 4, and, by operation of Haw. Rev. Stat. § 26-2, the Senate President would become the Lieutenant Governor.

But, saving aside whether he should, can Governor Abercrombie appoint himself? Under the Hawaii State Constitution, "[t]he Governor shall not hold any other office or employment or profit under the State or the United States during the governor’s term of office." Art. V, Section 1. Tough call.

New Maritime Contracts Case from 2nd Circuit - Garanti Finansal Kiralama v. Aqua Marine

Interesting case noting the interplay between the Declaratory Judgment Act and the federal courts' admiralty jurisdiction.  The case is Garanti Finansal Kiralama A.S. v. Aqua Marine and Trading, Inc. and the original opinion can be found here.

Facts are straightforward:  a marine shipping fuel provider brought a claim in arbitration demanding to be paid for bunkers provided to two ships owned by Garanti.  The provider submitted the "order confirmation contracts" which contained the arbitratrion provisions being invoked.  The shipowner filed an admiralty complaint in federal court asserting admiralty jurisdiction and seeking declaratory judgment that it was not bound by the arbitration provision because it did not sign the "order confirmation contracts".  The vessels' owner advised that it had chartered the vessels under a bareboat charter to third parties and those charterers may have hired the entity that signed the contracts.

The trial court felt persuaded that the entity signing the contracts was an agent for the vessels owner and dismissed the complaint.

The Second Circuit vacated that dismissal finding that the evidence was not enough to establish an agency relationship between the contracting party and the vessels' owner.

There is an interesting civil procedure issue in this case.  Technically, the vessels' owner was arguing that there weren't any contracts - so, how could the federal court have admiralty jurisdiction over a maritime non-contract?  The Second Circuit, seeing perhaps a gordian knot of epic proportions - notes that if the Defendant had sued the Plaintiff, there would be unquestionable admiralty jurisdiction owing to the "order confirmation contracts" - so a mirror image, declaratory judgment suit should have admiralty jurisdiction too.

New Defense Base Act Case from First Circuit - Truczinskas v. OWCP

As Amended.  Often seen in statutes.  Rarely litigated.

The First Circuit Court of Appeals issued a decieion in a Defense Base Act case.  It is entitled Truczinskas v. Director, Office of Workers' Compensation Programs and can be found here.  

The facts are short.  A employee duing military training in Saudi Arabia was found hanging from a cross-beam with a noose around his neck.  His widow brought a claim under the Defense Base Act, 42 U.S.C. s. 1651-1654.

First issue, does the Court of Appeals have jurisdiction on appeal from the Benefits Review Board or does this matter properly belong in the district court. [Author's Note - Danger - Circuit Split Coming Up].  The Defense Base Act is patterned after the Longshore and Harbor Workers Compensation Act.  The Defense Base Act, when enacted, required awards to be reviewed in the district court "wherein is located the office of the deputy commissioner whose compensation order is involved."  But, since 1972, Longshore cases have been reviewed at the circuit court and not the district court.  Did Congress overlook the Defense Base Act when it shifted jurisdiction over Longshore cases to the circuit court?  Or does the language "as amended" in the Defense Base Act, carry with it the incorporation of all the amendments to the Longshore Act.  The Fourth Circuit said no in Lee v. Boeing Co., 123 F.3d 801 (4th Cir. 1997).  This court said yes, that the case is property in the circuit court.

The second issue was on the coverage under the Act for suicide.  There are several presumptions against a finding of suicide, which would lead to non-coverage under the compensation scheme.  First, the law presumes that claims are covered claims until proven otherwise.  Second, injuries are presumed to be not caused by willful intentional act.

Thinking Out Loud: Property Rights After Natural Disasters

I am pleased to announce that the Condemnation Committee of the American Bar Association's Section on Litigation is presenting a teleconference "roundtable" on the timely subject of natural disasters and property rights.

The talk is entitled "Thinking Out Loud: Property Rights After Natural Disasters".  Register here.

A synopsis:

Over one-half of the people in the United States live within 50 miles of the coastline.  Hurricanes and similar types of natural disasters have caused billions of dollars in damage in recent years, particularly in coastal communities, and some scientists warn that global warming and rising sea levels will increase the frequency or severity of these types of natural disasters.  Private property rights in the wake of natural disasters are an important issue not only to property owners, but also to their lenders and to the recovery and viability of the region in the wake of natural disaster.  We have assembled a geographically diverse group of property rights attorneys from coastal communities to discuss their experiences with property rights in the aftermath of natural disasters.  The moderator will be Mark M. Murakami of the Damon Key firm in Honolulu.  From New Jersey, we have invited Anthony Della Pelle and Tom Olson of the McKirdy & Riskin firm. Ed Thomas of the National Hazard Mitigation Association is invited as is Robert H. Thomas of inversecondemnation.com.  Geographically rounding out the panel will be Casey Pipes of the Helmsing, Leach law firm in Mobile, Alabama.

No CLE credit, but it is free to any one interested, even non-ABA members, so join in.

Seventh Circuit Affirms Right to Bear Arms Outside of Home

Judge Richard Posner, writing for the majority on a Seventh Circuit panel, struck down Illinois' ban on firearms possession outside the home as unconstitutional under the 2nd Amendment. The decision stays its impact for 180 days to allow the Illinois' legislature time to "fix" the law.

The opinion can be downloaded here.

Much to read with the opinion largely based on historical analysis of carriage of firearms in the 18th century and on empirical studies about gun related crimes in America.

We are disinclined to engage in another round of historical analysis to determine whether eighteenth-century America understood the Second Amendment to include a right to bear guns outside the home. The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside. The theoretical and empirical evidence (which overall is inconclusive) is consistent with concluding that a right to carry firearms in public may promote self-defense. Illinois had to provide us with more than merely a rational basis for believing that its uniquely sweeping ban is justified by an increase in public safety. It has failed to meet this burden. The Supreme Court’s interpretation of the Second Amendment therefore compels us to reverse the decisions in the two cases before us and remand

Stay tuned.  

And now, Megatsunamis

Megatsunamis. Nuff said

http://www.ouramazingplanet.com/3854-hawaii-giant-tsunami-landslides.html

Oral Arguments at Ninth Circuit for Hawaii 2nd Amendment Case

Yesterday, the Ninth Circuit Court of Appeals heard oral argument in the Baker v. Kealoha case  The argument can be heard at - Download 12-16258 (1).
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Our earlier post here.

The Plaintiff's Opening Brief is: here.

The City's Answering Brief is:  here.

The Brady Center's amicus brief is:  here.

Disclosure:  I filed an amicus brief on behalf of the Brady Center to Prevent Gun Violence in both the trial court and the Ninth Circuit in support of the Chief of the Honolulu Police Department.

LA Times - Small union is causing big problems for ports

Los Angeles Times has an interesting piece about the strike in the ports of Los Angeles and Long Beach.  Per the article:  

The disruption is costing an estimated $1 billion a day at the ports of Los Angeles and Long Beach, on which some 600,000 truckers, dockworkers, trading companies and others depend for their livelihoods.

1 BILLION dollars a day.  This strike will have much broader reach than just Southern California as the Los Angeles/Long Beach ports are the largest transport hub on the West Coast.