    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***




                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-11-0000625
                                                               23-DEC-2013
                                                               11:01 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAI#I
                             ---o0o---

             SIERRA CLUB, Petitioner/Appellant-Appellee,

                                 vs.
               CASTLE & COOKE HOMES HAWAI#I, INC.; and
          THE LAND USE COMMISSION OF THE STATE OF HAWAI#I,
                  Respondents/Appellees-Appellants,

                                     and

OFFICE OF PLANNING, STATE OF HAWAI#I; DEPARTMENT OF PLANNING AND
          PERMITTING; and NEIGHBORHOOD BOARD NO. 25,
                Respondents/Appellees-Appellees.


                              SCWC-11-0000625

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-11-00006251; CIV. NO. 10-1-2424-11)

                            December 23, 2013

          NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ., WITH
      RECKTENWALD, C.J., CONCURRING AND DISSENTING SEPARATELY




      1
            CAAP-11-0000627, CAAP-11-0000730, and CAAP-11-0000744 were
consolidated with CAAP-11-0000625 on November 16, 2011.
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



                OPINION OF THE COURT BY POLLACK, J.

           This case requires us to consider whether the Hawai#i

State Senate’s express rejection of a board member’s nomination

for a second term effectively disqualifies the member from

continuing to serve on the board and from voting on matters of

critical importance to the community.

           On April 26, 2010, the Senate rejected Duane Kanuha’s

(Kanuha) nomination for a second term as a commissioner on the

Respondent/Appellee-Appellant state Land Use Commission (LUC),

based in part on the finding that Kanuha lacked the requisite

knowledge and experience to qualify as the designated member with

expertise on Hawaiian land usage.         More than four months after

the Senate’s rejection, Kanuha continued to participate in the

LUC’s consideration of a significant development project

involving the reclassification of agricultural land for urban

use.   At that time, the Petitioner/Appellant-Appellee Sierra Club

(Sierra Club) filed an action to disqualify Kanuha from serving

on the LUC as of the date of his rejection and to invalidate any

actions Kanuha had taken with respect to the development project.

The LUC denied the action and, that same day, deliberated on and

voted to approve the subject reclassification.          Despite the

Senate’s finding that he was unqualified to continue serving as

an LUC member, Kanuha participated in the LUC’s vote and the

LUC’s subsequent vote to approve the written findings,

conclusions, and decision and order approving the project.             The


                                    -2-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



decision and order would not have been approved without Kanuha’s

vote.

          For the reasons set forth herein, we conclude that in

light of the Senate’s rejection of Kanuha’s nomination for a

second term, Kanuha was not a valid holdover member of the LUC

under Hawai#i Revised Statutes (HRS) § 26-34 when he voted on the

reclassification.    Kanuha also did not qualify as a de facto

member of the LUC given the Senate’s express rejection of his

nomination.   Without Kanuha’s disqualified vote, the LUC lacked

the requisite number of votes to approve the reclassification.

Accordingly, we reverse the judgment of the Intermediate Court of

Appeals (ICA) and affirm the judgment of the Circuit Court of the

First Circuit (circuit court).

                                    I.

          Kanuha was nominated by the governor for a four-year

term as a LUC commissioner on April 12, 2005.          2005 Senate

Journal, at 586 (Governor’s Message 630).         His nomination was

confirmed by the Senate on April 27, 2005.         2005 Senate Journal,

at 770.

          On July 3, 2007, Respondent/Appellee-Appellant Castle &

Cooke Homes Hawai#i, Inc. (Castle & Cooke) filed a Petition for

Land Use District Boundary Amendment with the LUC.           Subsequently

on May 16, 2008, Castle & Cooke filed an Amended Petition for

Land Use District Boundary Amendment Verification




                                    -3-
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



(Reclassification Petition),2 seeking to amend the land use

district boundary to reclassify approximately 767 acres in

Waipi#o and Waiawa, O#ahu, from an agricultural to urban district.

The petition involved two geographic areas referred to as Koa

Ridge Makai, consisting of approximately 576.435 acres of land in

Waipio, and Castle & Cooke Waiawa, consisting of approximately

191.214 acres of land in Waiawa.

            The petition was filed pursuant to HRS § 205-4

(governing district boundary amendments to land areas greater

than fifteen acres) and Hawai#i Administrative Rules (HAR) § 15-

15 (governing LUC rules).       The boundary amendment and

reclassification was requested as part of a proposal for the two-

phase development of 5,000 residential units, mixed-use village

center, hotel, medical center, commercial properties, light

industrial, elementary schools, parks, churches, recreation

centers, open space, and roadways.         The development was expected

to span more than ten years, with Koa Ridge Makai projected to be

completed by 2020 and Castle & Cooke Waiawa projected to be

completed by 2024.

            The LUC held several evidentiary hearings on the

Reclassification Petition, during which it received numerous oral

and written testimonies from the public, both in support of and

in opposition to the Project.


      2
            The Reclassification Petition included three amendments to the
petition submitted by Castle & Cooke on June 17, June 30, and November 2,
2009.

                                     -4-
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



            While the LUC was still in the process of considering

the Reclassification Petition, Kanuha’s first term expired on

June 30, 2009.     See 2005 Senate Journal, at 586 (Governor’s

Message 630).     He continued to serve as a LUC commissioner as a

holdover member.

            On December 4, 2009, the LUC voted to approve the

Sierra Club’s petition to intervene in the matter.3

            On March 3, 2010, the governor nominated Kanuha to

serve a second term as a LUC commissioner.           2010 Senate Journal,

at 283 (Governor’s Message 338).        The Water, Land, Agriculture,

and Hawaiian Affairs committee prepared a report on Kanuha’s

nomination.    S. Stand. Comm. Rep. No. 3208, 2010 Senate Journal,

at 1332.    The committee stated that Kanuha “is presently a member

of the [LUC], and is the designated member with substantial

experience or expertise in traditional Hawaiian land usage and

knowledge of cultural practices.”4         Id.    However, the committee

found that Kanuha had “limited experience with traditional

Hawaiian land usage and knowledge.”         Id.


      3
            The LUC also voted to allow the Mililani/Waipio/Melemanu
Neighborhood Board No. 25 (Neighborhood Board No. 25) to intervene in the
matter.
      4
            In 2006, after Kanuha was appointed for his first term, HRS § 205-
1 was amended to require that one member of the LUC “shall have substantial
experience or expertise in traditional Hawaiian land usage and knowledge of
cultural land practices.” 2006 Haw. Sess. Laws Act 296, § 1 at 1198. During
the Senate’s floor discussion of Kanuha’s nomination for a second term, there
was disagreement as to whether Kanuha was currently serving as, or being
nominated to serve as, the designated member with cultural expertise. See
2010 Senate Journal, at 561-64. Kanuha’s position was that he was not aware
that he was currently serving as, or being nominated to serve as, the
designated member. See id.

                                     -5-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



          The committee further noted that it had been referred a

total of four nominees to the LUC during the 2010 regular

session, consisting of three current LUC commissioners and a

fourth nominee, a “civil litigation attorney with no experience

in land issues.”    Id.

          Despite its concerns, the committee recommended that

the Senate consent to Kanuha’s nomination.         Id.

          On April 26, 2010, the full Senate considered Kanuha’s

nomination for a second term.       2010 Senate Journal, at 564.

During the floor discussion on Kanuha’s nomination, Senators Hee

and Hemmings spoke in opposition to the nomination, citing

Kanuha’s lack of expertise as a cultural practitioner.            2010

Senate Journal, at 561-64.      Senator Hemmings in particular argued

that the Senate had “no choice” but to reject Kanuha’s nomination

in order to comply with HRS § 205-1, which requires one member of

the LUC to have “substantial experience or expertise in

traditional Hawaiian land usage and knowledge of cultural land

practices”:

          Through it all in all of the discussion, one clear factor
          cannot be denied: We passed a law requiring a cultural
          practitioner. The Governor has not followed it. This
          nominee, by his own admission, is not a cultural
          practitioner. We have no choice but to vote ‘no’ in order
          to stay compliant with the law as it is written and, more
          importantly, with the moral integrity of this body to stay
          consistent with what we voted for.

2010 Senate Journal, at 564 (emphasis added).




                                    -6-
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



            After completion of the floor discussion, the Senate

voted to reject Kanuha’s nomination by a vote of 14-9, with two

Senators excused.     Id.

            More than four months after the Senate’s vote to reject

his nomination for a second term, Kanuha continued to participate

in the LUC’s consideration of the Reclassification Petition.                 On

September 8, 2010, the Sierra Club filed a Motion to Disqualify

Duane Kanuha, Nunc Pro Tunc, as of April 26, 2010 (Motion to

Disqualify) with the LUC.5      The Sierra Club argued that Kanuha’s

capacity to be a holdover member under HRS § 26-34 was terminated

on April 26, when the Senate declined to confirm his nomination

for re-appointment.      The Sierra Club requested that the LUC issue

an order providing that Kanuha was not a commissioner as of April

26, 2010, and that any actions taken by Kanuha with respect to

the Reclassification Petition since that time be deemed invalid.

            The LUC convened for a meeting on September 23, 2010,

to consider the Motion to Disqualify and the Reclassification

Petition.    The LUC voted 6-0 to deny the Motion to Disqualify,

with Kanuha and one other commissioner abstaining from voting.

Prior to voting on the Reclassification Petition, the LUC

Chairman informed the commissioners that if a decision was



     5
            The motion was filed pursuant to HAR § 15-15-70, which provides
that “[a]ny party may make motions before, during, or after the close of a
hearing.” HAR § 15-15-70(a). Castle & Cooke filed a memorandum in opposition
to the motion, arguing that the incumbent LUC commissioner retains the right
to hold office until a successor is appointed and qualified. The state Office
of Planning filed a joinder in Castle & Cooke’s memorandum in opposition.

                                     -7-
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



reached that day, the LUC staff would be directed to draft

findings of fact, conclusions of law, and a decision and order

reflecting the decision.       Those findings and conclusions would

“be further deliberated” at the next hearing.           The LUC then voted

to approve the Reclassification Petition by a vote of 7-1, with

Kanuha voting in favor of approval and one commissioner being

excused.

            The LUC convened again on October 15, 2010 to

deliberate on the proposed “Findings of Fact, Conclusions of Law,

Decision and Order” (Decision and Order) prepared by the staff

following the prior meeting.        The commissioners proposed and

deliberated on multiple amendments to the conditions in the

proposed order.6     The LUC, including Kanuha, voted 6-0 to approve

the Decision and Order, as amended by the discussion during the

meeting.

            The Sierra Club filed an appeal with the circuit court

on November 10, 2010, challenging the Decision and Order.              The

Sierra Club argued that Kanuha’s capacity to continue serving as

a commissioner was terminated by the Senate’s rejection of his



      6
            Commissioner Judge proposed amendments to Condition 3 (integrated
solid waste management plan), Condition 8 (civil defense), and Condition 12
(public school facilities). Commissioner Jencks proposed amendments to
Condition 13 (archaeological and historic preservation), Condition 14
(previously unidentified burials and archaeological/historic sites), Condition
15 (access rights), Condition 19 (best management practices), and Condition 26
(annual reports). Following an executive session, Commissioner Jencks
withdrew his proposed amendments in favor of future discussion. Commissioner
Contrades proposed a revision to Condition 16 (compliance with sustainability
plan).
            Commissioner Lezy proposed a revision to Finding of Fact 277
regarding developing Koa Ridge Makai independently of Castle & Cooke Waiawa.

                                     -8-
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



nomination for a second term.7        Thus, Kanuha should not have been

permitted to vote on the Reclassification Petition, and the

petition should have been denied because the October 15 LUC vote

approving the Decision and Order failed to receive the requisite

six affirmative votes.      The Sierra Club asked the circuit court

to stay the order granting the amendment of the land use district

boundaries and to stay the appellees, including the LUC and

Castle & Cooke, from taking further action pursuant to the

order.8   The Sierra Club also asked the circuit court to reverse

the Decision and Order and remand with instructions to the LUC to

enter findings of fact, conclusions of law, and a decision and

order denying the Reclassification Petition.

            In response, the LUC argued that Kanuha was a valid

holdover member under HRS § 26-34, as nothing in the statute or

its legislative history indicated that the Senate’s rejection of

an incumbent’s nomination for a second term has any effect on the

incumbent’s status as a holdover member.          Alternatively, the LUC

argued that even assuming Kanuha was disqualified from

participating in the proceedings on the Reclassification



      7
             The Sierra Club specifically alleged that Kanuha’s continued
participation in LUC proceedings regarding the Reclassification Petition
violated article V, section 6 of the Hawai#i Constitution (requiring Senate’s
advice and consent for appointments), HRS § 26-34 (establishing holdover
provision), HRS § 205-1 (requiring member with expertise in traditional
Hawaiian land usage and requiring six affirmative votes for any boundary
amendment), and HAR § 15-15-13 (requiring six affirmative votes for boundary
amendments).
      8
            The other named appellees were the state Office of Planning, the
city Department of Planning and Permitting, and Neighborhood Board No. 25.

                                     -9-
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



Petition, the petition was still approved by the requisite six

affirmative votes on September 23, 2010.          The LUC contended that

the subsequent vote to approve the Decision and Order was “an

administrative or ministerial act,” which only required five

affirmative votes pursuant to HRS § 92-15.          Castle & Cooke

reiterated many of the same arguments, maintaining that the

Reclassification Petition was approved by more than six

affirmative votes on September 23 and that Kanuha was a valid

holdover under HRS § 26-34.

            At the hearing on the appeal, the LUC argued for the

first time that the circuit court lacked jurisdiction to review

the LUC’s approval of the Reclassification Petition because a quo

warranto action to remove Kanuha was the exclusive remedy

available to Sierra Club.9       The court set a briefing schedule

with respect to the jurisdiction issue and proceeded to address

the merits of the Sierra Club’s appeal.

            The circuit court held that Kanuha was disqualified

from serving as a holdover member as a result of the Senate’s




      9
            “Quo warranto is ‘a common-law writ used to inquire into the
authority by which a public office is held or a franchise is claimed.’”
Dejetley v. Kaho#ohalahala, 122 Hawai#i 251, 265, 226 P.3d 421, 435 (2010)
(quoting Black’s Law Dictionary 1371 (6th ed. 1991)). The common law remedy
is codified under HRS Chapter 659 and defined by HRS § 659-1 (1993) as “an
order issuing in the name of the State by a circuit court and directed to a
person who claims or usurps an office of the State or of any subdivision
thereof, or of any corporation or quasi-corporation, public or private, or any
franchise, inquiring by what authority the person claims the office or
franchise.”

                                    -10-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



rejection of his nomination for a second term.10         Under HRS § 26-

34, “a board member is appointed only after advice and consent of

the Senate.”   After the Senate rejected Kanuha’s nomination,

“Kanuha could not be a board member pursuant to 26-34(a), and

thus, was disqualified as a holdover member under 26-34(b)”:

          Under 26-34(b), a board member may continue office as a
          holdover member as long as that member is not disqualified
          from membership under subsection A. Under 26-34, subsection
          A, a board member is appointed only after advice and consent
          of the Senate. In this particular case, the Senate
          expressly rejected Mr. Kanuha’s appointment for a second
          term on the LUC. Accordingly, Mr. Kanuha could not be a
          board member pursuant to 26-34(a), and thus, was
          disqualified as a holdover member under 26-34(b).

The court explained, “In essence, the legislative body rejected

the continuance of Mr. Kanuha in his executive branch performance

of duties, and it would seem contrary to that effect to allow a

person who was affirmatively rejected to continue in his

position.”

          The circuit court concluded that because Kanuha was

disqualified, the Reclassification Petition did not receive six

affirmative votes as required by HRS § 205-4.          The court rejected

the argument that the LUC’s October 15, 2010 vote approving the

Decision and Order was ministerial in nature.          The court reasoned

that the LUC “had the ability to not only approve, but also to

deny or to modify a petition by imposing further conditions” at

the October 15 meeting.     The court noted that pursuant to HRS §

205-4(g), the Commission acts to approve, deny, or modify the

petition by filing findings of fact and conclusions of law.


     10
          The Honorable Karl K. Sakamoto presided.

                                   -11-
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



Thus, “it is the actual filing of the actual findings of fact and

conclusions of law that constitutes the final LUC action in

approving a boundary amendment.”

            The court therefore concluded “that the ultimate

decision to approve the boundary amendment petition took place on

October 15th 2010, when the LUC voted to approve the adoption of

the findings of fact and conclusions of law before filing.”

Without Kanuha’s disqualified vote, the LUC lacked the six

affirmative votes required to approve the boundary amendment.

The court held that it would reverse the LUC’s Decision and Order

approving the Reclassification Petition, subject to briefing on

the LUC’s jurisdiction argument.

            Subsequently on July 29, 2011, the circuit court

entered an order denying the LUC’s supplemental memorandum on

jurisdiction and affirming its reversal of the LUC’s Decision and

Order.11   The court’s final judgment was entered on October 5,

2011.

            On appeal, the ICA reversed the circuit court’s final

judgment, holding that Kanuha was not disqualified from serving



      11
            The LUC filed a supplemental memorandum on the jurisdiction issue
on July 27, 2011. In the circuit court’s order summarily denying the
supplemental memorandum, the court noted that the LUC “essentially argues that
. . . Kanuha should have been disqualified through a proceeding brought by the
State, and that until then, his actions were valid as a de facto officer.”
However, the court determined that the LUC’s quo warranto argument “merely
constitute[d] an attack on [Sierra Club’s] standing to bring this suit.” The
court found that such an “argument was not timely raised in [the LUC’s]
original briefing,” and did not affect the court’s jurisdiction over the
appeal.
            Castle & Cooke filed a motion for reconsideration of the circuit
court’s order. The court denied the motion on August 15, 2011.

                                    -12-
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



as a holdover member under HRS § 26-34(b) as a result of the

Senate’s rejection of his nomination for a second term.12            Sierra

Club v. Castle & Cooke Homes Haw., Inc., 128 Hawai#i 375, 289

P.3d 1011 (App. 2012).      The ICA determined that pursuant to the

plain language of HRS § 26-34(a), “the sole disqualification

[from holdover status] is that ‘no person shall be appointed

consecutively to more than two terms as a member of the same

board or commission; provided that membership on any board or

commission shall not exceed eight consecutive years.’”             128

Hawai#i at 377, 289 P.3d at 1013 (brackets omitted).

            The ICA therefore concluded that “Kanuha was not

disqualified under HRS § 26-34(a) as he had not been a

commissioner appointed consecutively to more than two terms as a

member of LUC nor had his membership on LUC exceeded eight

consecutive years.”      Id.   The ICA held that the circuit court

erred in holding that Kanuha was not a valid holdover based on

the Senate’s rejection of his nomination, and reversed the

circuit court’s judgment.       Id. at 377-78, 289 P.3d at 1013-14.

Given its disposition, the ICA did not address whether the

circuit court erred in holding that six votes were necessary for

the LUC’s October 15, 2010 approval of the Decision and Order,

although the ICA characterized the vote as “the ministerial act


      12
            The Honorable Daniel R. Foley, Alexa D.M. Fujise, and Katherine G.
Leonard presided. The parties filed four separate appeals from the circuit
court’s order denying the LUC’s supplemental memorandum on jurisdiction, order
denying Castle & Cooke’s motion for reconsideration, and final judgment. The
ICA consolidated the appeals by order on November 16, 2011.

                                    -13-
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



of approving LUC’s decision as to form.”13          Id. at 378 n.3, 289

P.3d at 1014 n.3.

            In its application for writ of certiorari, the Sierra

Club maintained that Kanuha was statutorily disqualified from

voting on the Reclassification Petition under HRS § 26-34 because

he failed to receive the advice and consent of the Senate for his

second term.     The Sierra Club argued that “[w]hen read within the

entire framework of § 26-43, the disqualifying criteria logically

include[s]” the member’s failure to receive the Senate’s advice

and consent for reappointment.        The Sierra Club further argued

that the ICA’s narrow interpretation of the term “disqualified”

to only disqualify members who served for two terms or eight



       13
             The ICA also did not address Castle & Cooke’s and the LUC’s
argument that the circuit court erred in determining that it had subject
matter jurisdiction over the appeal. Both parties argued that the Sierra
Club’s Motion to Disqualify was in the nature of a quo warranto action and
therefore governed by HRS Chapter 659. See supra note 9. They contended that
the LUC lacked jurisdiction to determine quo warranto actions and that the
circuit court therefore lacked jurisdiction to review the appeal.
             The parties have not raised the issue of jurisdiction on appeal to
this court. However, we address the issue sua sponte. See Chun v. Employees’
Ret. Sys., 73 Haw. 9, 13, 828 P.2d 260, 263 (1992) (“If the parties do not
raise the issue [of lack of subject matter jurisdiction], a court sua sponte
will, for unless jurisdiction of the court over the subject matter exists, any
judgment rendered is invalid.”) (quotation marks and citations omitted).
             We conclude that the circuit court properly exercised subject
matter jurisdiction over Sierra Club’s appeal from the LUC’s Decision and
Order approving the Reclassification Petition. See HRS § 205-4(i) (2001)
(“Parties to proceedings to amend land use district boundaries may obtain
judicial review thereof in the manner set forth in section 91-14”); HRS § 91-
14(a) (“Any person aggrieved by a final decision and order in a contested case
. . . is entitled to judicial review”). Additionally, the LUC had
jurisdiction to consider the Motion to Disqualify. See HRS § 659-10 (1993)
(“Nothing in this chapter shall preclude the obtaining of relief available by
quo warranto by other appropriate action.”); Dejetley v. Kaho#ohalahala, 122
Hawai#i 251, 269, 226 P.3d 421, 439 (2010) (permitting declaratory action to
proceed even though quo warranto relief may have been available); HAR § 15-15-
70 (providing that motions may be made “before, during, or after the close of
a hearing” on a petition for boundary amendment and “[m]otions that do not
involve the final determination of a proceeding may be heard and determined by
the chairperson, commissioner, or hearings officer”).

                                     -14-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



consecutive years has the effect of undermining the Senate’s

advice and consent power under article V, section 6 of the

Hawai#i Constitution.

                                    II.

                                    A.

          Pursuant to HRS § 205-1 (Supp. 2010), the LUC consists

of nine members who “shall be appointed in the manner and serve

for the term set forth in section 26-34.”         Six affirmative votes

are required to approve any district boundary amendment under HRS

§ 205-1, as well as under HRS § 205-4, which applies to district

boundary amendments involving land areas greater than fifteen

acres.

          HRS § 26-34 (2009), entitled “Selection and terms of

members of boards and commissions,” governs the process by which

an individual is qualified to serve as a commissioner.            The

statute provides that members of a commission “shall be nominated

and, by and with the advice and consent of the senate, appointed

by the governor”:

          Selection and terms of members of boards and commissions.
          (a) The 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. Unless
          otherwise provided by this chapter or by law hereafter
          enacted, the terms of the members shall be for four years;
          provided that the governor may reduce the terms of those
          initially appointed so as to provide, as nearly as can be,
          for the expiration of an equal number of terms at intervals
          of one year for each board and commission. Unless otherwise
          provided by law, each term shall commence on July 1 and
          expire on June 30 . . . . No person shall be appointed
          consecutively to more than two terms as a member of the same
          board or commission; provided that membership on any board
          or commission shall not exceed eight consecutive years.



                                   -15-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



          (b) Any member of a board or commission whose term has
          expired and who is not disqualified for membership under
          subsection (a) may continue in office as a holdover member
          until a successor is nominated and appointed; provided 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.

(Emphases added).

          At issue in this case is whether an LUC commissioner

whose first term has expired can continue to serve as a holdover

member under subsection (b) after the Senate has rejected the

commissioner’s nomination for a second term pursuant to

subsection (a).    In other words, the relevant question is whether

the Senate’s rejection of Kanuha’s nomination for a second term

rendered Kanuha “disqualified for membership under subsection

(a)” and therefore unable to serve as a valid holdover member.

          The ICA concluded that the Senate’s refusal to confirm

a nomination is irrelevant to the determination of holdover

status because the only way in which an LUC member can be

“disqualified for membership under subsection (a)” is for the

member to serve more than two consecutive terms or eight

consecutive years.    128 Hawai#i at 377, 289 P.3d at 1013.

          “Statutory interpretation is a question of law

reviewable de novo.”     State v. Wheeler, 121 Hawai#i 383, 390, 219

P.3d 1170, 1177 (2009) (quotation marks omitted).           In this case,

the ICA’s interpretation of HRS § 26-34 is contrary to the plain

language of the statute and the intent of the legislature.              See

Riethbrock v. Lange, 128 Hawai#i 1, 11, 282 P.3d 543, 553 (2012)

(“implicit in the task of statutory construction is our foremost

                                   -16-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



obligation to ascertain and give effect to the intention of the

legislature, which is to be obtained primarily from the language

contained in the statute itself”) (quotation marks and citation

omitted).

            HRS § 26-34(b) provides that “[a]ny member of a board

or commission whose term has expired and who is not disqualified

for membership under subsection (a) may continue in office as a

holdover member until a successor is nominated and appointed[.]”

(Emphasis added).    “Under general principles of statutory

construction, courts give words their ordinary meaning unless

something in the statute requires a different interpretation.”

Saranillio v. Silva, 78 Hawai#i      1, 10, 889 P.2d 685, 694 (1995).

 See HRS § 1-14 (2009) (“The words of a law are generally to be

understood in their most known and usual signification, without

attending so much to the literal and strictly grammatical

construction of the words as to their general or popular use or

meaning.”).    “[I]t must be supposed that the legislature, in

enacting a statute, intended that the words used therein should

be understood in the sense in which they are ordinarily and

popularly understood by the people, for whose guidance and

government the law was enacted . . . .”         In re Taxes of Johnson,

44 Haw. 519, 530, 356 P.2d 1028, 1034 (1960) (quotation marks

omitted).

            In the holdover provision at issue here, the

legislature used the phrase “disqualified for membership under


                                   -17-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



subsection (a)” to describe commissioners who are not permitted

to serve as holdover members.       “Disqualification” means “[t]he

act of making ineligible; the fact or condition of being

ineligible.”   Black’s Law Dictionary 540 (9th ed. 2009)

[hereinafter Black’s Law].      See Webster’s Third New Int’l

Dictionary 655 (1993) [hereinafter Webster’s] (defining

“disqualify” to mean “to deprive of the qualities, properties, or

conditions necessary for a purpose” or “to deprive of a power,

right, or privilege”).     “Dis” is a prefix meaning to “do the

opposite of” or “reverse.”      Id. at 642.     Thus, subsection (b)

provides that persons who were formerly qualified are no longer

qualified to serve as holdover members as defined by “subsection

(a).”

           Subsection (a) sets forth the manner in which an

individual becomes eligible to serve as a commissioner, providing

that such members “shall be nominated and, by and with the advice

and consent of the senate, appointed by the governor.”            HRS § 26-

34(a) (emphases added).     Cf. Blair v. Harris, 98 Hawai#i 176,

179, 45 P.3d 798, 801 (2002) (“‘Eligible’ means ‘fit or proper to

be chosen’ or ‘legally qualified to be elected or appointed to

office.’”) (quoting Random House College Dictionary 429 (Rev. Ed.

1979)).   Accordingly, an individual can only become eligible to

serve as an LUC commissioner by being nominated by the governor

and thereafter confirmed by the Senate.         The last sentence of

subsection (a) limits an LUC member to no more than two


                                   -18-
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



consecutive terms, i.e. eight consecutive years.14 HRS § 26-

34(a).     Thus, considered in its entirety, subsection (a)

encompasses two situations in which a member would be

“disqualified for membership,” or become ineligible where the

member was formerly eligible: 1) a nominated member is rejected

by the Senate; or 2) a member has consecutively served two terms

or eight years.15

             Subsection (b) references “subsection (a)” as a whole

when describing an eligible holdover member as any member “who is

not disqualified for membership under subsection (a).”             Thus, the

word “disqualified” must be construed to give it meaning within

the context of all provisions of subsection (a).            See Potter v.

Haw. Newspaper Agency, 89 Hawai#i 411, 422, 974 P.2d 51, 62-63

(1999) (“Our rules of statutory construction require us to reject

an interpretation of [a] statute that renders any part of the

statutory language a nullity.”); Blair, 98 Hawai#i at 179, 45

P.3d at 801 (“Courts are bound to give effect to all parts of a

statute, and no clause, sentence, or word shall be construed as



      14
            An LUC member’s term is four years. HRS § 26-34(a) (“Unless
otherwise provided by this chapter or by law hereafter enacted, the terms of
the members shall be four years”); HRS § 205-1 (LUC members shall “serve for
the term set forth in section 26-34”). Accordingly, it appears that the
requirement that an LUC member not serve for longer than two consecutive terms
is the same as the requirement that a member not serve for longer than eight
consecutive years.
      15
           A member who has not been nominated for a second term is not
disqualified from serving as a holdover under the plain language of HRS § 26-
34(b), as the member continues to occupy a status of being eligible for
nomination and confirmation, whereas the Senate’s rejection of a member’s
nomination for a second term renders the member ineligible, and therefore
disqualified for membership under subsection (a).

                                    -19-
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



superfluous, void, or insignificant if a construction can be

legitimately found which will give force to and preserve all

words of the statute.”) (quotation marks, citation and ellipses

omitted).

            Because subsection (a) identifies two situations in

which an individual would be disqualified for membership, the

plain meaning of subsection (b) is that a member is not eligible

to serve as a holdover if either situation is applicable.

            Therefore, a member who is nominated but rejected by

the Senate is “disqualified” from serving as a holdover member.

            On the other hand, an LUC member who has served one

term and who has not been re-nominated and rejected by the Senate

is permitted to serve as a holdover under subsection (b) until a

successor is appointed or nominated within a “reasonable time,”16

or until “the end of the second regular legislative session

following the expiration of the member’s term of office.”              HRS §

26-34(b).    In this case, Kanuha was able to serve nearly ten

months as a valid holdover from June 30, 2009, when his first

term expired, until April 26, 2010, when the Senate rejected his

nomination for a second term.        In the absence of re-nomination

and Senate rejection, Kanuha could have continued to serve as a


      16
            This court has stated that under HRS § 26-34, “the governor would
be entitled to at least a reasonable time after a term expires to nominate a
qualified person to a board or commission.” Life of the Land v. Burns, 59
Haw. 244, 251, 580 P.2d 405, 410 (1978). See Hanabusa v. Lingle, 119 Hawai#i
341, 351, 198 P.3d 604, 614 (2008) (per curiam) (holding that governor’s duty
to nominate and appoint members of the Board of Regents of the University of
Hawai#i “is subject to a reasonable time standard,” “judged by the totality of
the circumstances”).

                                    -20-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



holdover member subject to the limitation that holdover status

not extend beyond the end of the second regular legislative

session following the expiration of his first term, and subject

to the requirement that the governor appoint a successor within a

reasonable time.    Thus the plain language of the statute is not

superfluous, as a member who has not been rejected by the Senate

may serve as a holdover for up to two years after the expiration

of the member’s term.     However, HRS § 26-34(b) disqualifies a

member who has served one term from holding over upon rejection

by the Senate, as that member is no longer eligible to serve on

the LUC at all.

          Moreover, under the ICA’s interpretation of HRS § 26-

34, a member who had served only one term could never be

disqualified from serving as a holdover because the “sole” basis

for disqualification is for a member to have served two

consecutive terms.    128 Hawai#i at 377, 289 P.3d at 1013.

Pursuant to this interpretation, a one-term member would always

be entitled to continue serving as a holdover, potentially until

the end of the second regular legislative session following the

expiration of the member’s term; in this case, that date would

have been May 5, 2011, or nearly two years after Kanuha’s first

term expired and over a year after the Senate’s rejection.             Under

the ICA’s interpretation, the Senate would have no recourse

during this time to terminate the member’s holdover status

despite rejecting the member’s nomination for a second term.


                                   -21-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



Yet, if it was the legislature’s intent to so restrict its power

and to limit the members who could be disqualified from serving

as holdovers, the legislature could have simply disqualified any

member who had served more than two terms.         Instead, the

legislature referenced “subsection (a)” in its entirety to define

the way a member is “disqualified” from serving as a holdover

member.

           As specifically drafted by the legislature, subsection

(a) plainly provides that an individual may only become eligible

to serve as a member of the LUC by receiving the Senate’s

consent.   For a member who has already served a term, the

Senate’s act of rejecting the member’s nomination for a second

term is an act that disqualifies the member from holding over.

To presume the legislature would have used the phrase

“disqualified for membership under subsection (a)” to apply

exclusively to members who had served more than two consecutive

terms is illogical and nullifies the general meaning and

application of the words employed by the legislature.

                                    B.

           The legislative history of HRS § 26-34 also reflects

that the intent of the statute was to prohibit a member from

serving as a holdover where the member’s nomination for a second

term has been rejected by the Senate.        See Franks v. City & Cnty.

of Honolulu, 74 Haw. 328, 335, 843 P.2d 668, 671-72 (1993) (“If

the statutory language is ambiguous or doubt exists as to its


                                   -22-
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



meaning, courts may take legislative history into consideration

in construing a statute.”) (quotation marks and brackets

omitted).

                                     1.

            When the holdover provision under HRS § 26-34(b) was

adopted in 1984, the original version of the bill provided that

“Any member of a board or commission whose term has expired and

who is not disqualified for membership under subsection (a) may

continue in office as a holdover member[.]”           S.B. 1725-84, 12th

Leg., Reg. Sess. (1984) (emphasis added).

            The Senate Judiciary Committee then amended the bill to

provide, “Any member of a board or commission whose term has

expired and who is not qualified for membership under subsection

(a) may continue in office as a holdover member[.]”            S.B. 1725-

84, S.D. 1, 12th Leg., Reg. Sess. (1984) (emphasis added).17

            Subsequently, the House Judiciary Committee changed the

word “qualified” back to “disqualified.”          S.B. 1725-84, S.D. 1,

H.D. 1, 12th Leg., Reg. Sess. (1984).         The report, as reproduced

in the House Journal, provides that the intent of the proposed

amendment was to allow any member of a board whose term has

expired and who is not “disqualified for membership” to serve

only two years beyond the member’s four-year appointment:

            Your Committee finds that the bill, as received, would allow
            for a member’s term of office to extend beyond eight years.


      17
            The Senate’s discussion of the amendment indicates that the use of
the word “qualified” was a typographical error and should have read
“disqualified.” See 1984 Senate Journal, at 330.

                                    -23-
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



             However, the intent of the proposed amendment to section 26-
             34, Hawaii Revised Statutes, is to allow any member of a
             board or commission whose term has expired and who is not
             disqualified for membership to serve only two years beyond
             the member’s four-year appointment. Accordingly, your
             Committee has amended the bill by changing the word
             “qualify” in page 2, line 6, to “disqualify” to clarify the
             legislative intent.

H. Stand. Comm. Rep. No. 690-84, in 1984 House Journal, at 1194

(emphasis added).

             The House Standing Committee Report No. 690-84 retained

in the Hawai#i State Archives contains slightly different

language from the version of the report that appears in the House

Journal.18    The Committee Report provides that the intent of the

amendment was to allow any member whose term has expired and “who

is not disqualified from serving another term” to serve only two

years beyond the member’s “first four-year appointment”:

             Your Committee finds that the bill, as received, would allow
             for a member’s term of office to extend beyond eight years.
             However, the intent of the proposed amendment to section 26-
             34, Hawaii Revised Statutes, is to allow any member of a
             board or commission whose term has expired and who is not
             disqualified from serving another term to serve only two
             years beyond the member’s first four-year appointment.
             Accordingly, your Committee has amended the bill by changing
             the word “qualify” in page 2, line 6, to “disqualify” to
             clarify the legislative intent.

H. Stand. Comm. Rep. No. 690-84, 12th Leg., Reg. Sess. (1984)

(emphases added).      The Committee Report is dated March 30, 1984

and is signed by the committee members.

             In both versions, the language of the House Committee

report indicates that the legislature intended for members to be


      18
            The Archives does not have any amended reports or other documents
explaining the reason for the discrepancy between the two versions of the
report. The House Journal provides only that the “Stand. Com. Rep. No. 690-84
on S.B. No. 1725-84, SD 1, HD1,” was adopted. 1984 House Journal, at 416.

                                     -24-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***



disqualified by factors other than serving beyond eight

consecutive years.    In other words, the legislature intended to

limit holdover membership to members who had served only two

years beyond the member’s first four-year term and to members who

were not otherwise “disqualified for membership.”

           The version of the report reproduced in the House

Journal provides that the intent of the holdover provision was to

allow a member “whose term has expired and who is not

disqualified for membership to serve only two years beyond the

member’s four-year appointment.”       H. Stand. Comm. Rep. No. 690-

84, in 1984 House Journal, at 1194 (emphasis added).            The report

clearly focuses on members who had only served one term thus far,

as anyone who had served two consecutive terms would already be

excluded from serving as a holdover based on the subsection (a)

clause providing that membership “shall not exceed eight

consecutive years.”     HRS § 26-34(a).

           If it had been the legislature’s sole intent to limit

the time that a holdover member was permitted to serve, without

imposing any other disqualifying factors, then such a result

could have been easily achieved without including the language

“and who is not disqualified for membership” in the committee

report.   The report would have then simply read: “the intent of

the proposed amendment to section 26-34, Hawaii Revised Statutes,

is to allow any member of a board or commission whose term has




                                   -25-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

expired to serve only two years beyond the member’s four-year

appointment.”

          The focus on one-term members is even clearer in the

signed Committee Report retained in the Archives, which expressly

states that the holdover provision was intended to allow any

member whose term has expired and “who is not disqualified from

serving another term” to serve only two years beyond the member’s

“first four-year appointment.”       (Emphases added).

          Thus, the reference to members who are “not

disqualified” in both versions of the Committee Report and the

resulting inclusion of the phrase “and who is not disqualified

for membership under subsection (a)” in HRS § 26-34(b) manifestly

indicates that the legislature intended for disqualification to

apply to circumstances other than the number of years that a

member has served.    The legislature’s clear intent was to require

holdover members to be members who had only served one term, and

who were not disqualified from serving another term.

                                    2.

          There are several additional reasons underscoring the

conclusion that the legislature did not intend for the

disqualification provision to apply solely to two-term members

such that a member who had served only one term could never be

disqualified from serving as a holdover member.

          First, HRS § 26-34(c) (2009) expressly provides that

“[a] vacancy occurring in the membership of any board or

commission during a term shall be filled for the unexpired term

                                   -26-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

thereof, subject to Article V, Section 6 of the Constitution of

the State.”   In 1984, when the holdover member provision was

added to HRS § 26-34, the House Public Employment and Government

Operations committee noted that “allowing holdover membership

with limitations on the length of service of a holdover board or

commission member better serves the intent of Article V, Section

6[.]”   H. Stand. Comm. Rep. No. 604-84, in 1984 House Journal, at

1148.   See S. Stand. Comm. Rep. No. 229-84, in 1984 Senate

Journal, at 1087 (“Your Committee finds that limiting the length

of service of a holdover board or commission member better serves

the intent of Article V, Section 6 of the State

Constitution[.]”).

           Article V, section 6, which governs executive and

administrative offices and departments, provides that the

governor may appoint individuals for interim appointments to any

office if a vacancy occurs while the Senate is not in session.

Haw. Const. art. V, § 6.      The interim appointment expires at the

end of the next Senate session, unless the appointment is

confirmed by the Senate.      Id.   However, section 6 specifically

provides that an individual whose nomination for appointment to

any office has been rejected by the Senate is no longer eligible

to serve an interim appointment in that office:

           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
           person so appointed shall not be eligible for another
           interim appointment to such office if the appointment failed
           to be confirmed by the senate.


                                    -27-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

          No person who has been nominated for appointment to any
          office and whose appointment has not received the consent of
          the senate shall be eligible to an interim appointment
          thereafter to such office.

Id. (emphasis added).

          Under the State constitution, then, an individual who

has not received the Senate’s consent to be appointed to any

office is no longer eligible to serve an interim appointment to

such office, even though an interim appointment is already

limited in length to the end of the next Senate session.            It

would have been illogical for the committee reports to state that

limiting the length of service of a holdover member “better

serves the intent of Article V, Section 6,” if the holdover

provision was intended to permit a rejected nominee to remain

serving as a holdover for up to two years when the nominee would

be ineligible to serve as an interim appointee under the

constitution.   See State v. Arceo, 84 Hawai#i 1, 19, 928 P.2d

843, 861 (1996) (“The legislature is presumed not to intend an

absurd result, and legislation will be construed to avoid, if

possible, inconsistency, contradiction, and illogicality.”)

(brackets and quotation marks omitted).

          Second, allowing a board member who has been expressly

denied reappointment to continue serving up to two years after

the expiration of the member’s first term has the unquestioned

effect of diminishing the advice and consent power of the Senate.

“[T]he subject of appointment of members to boards and

commission[s] must necessarily be considered to be the joint

responsibility of the governor and senate[.]”          Life of the Land

                                   -28-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

v. Burns, 59 Haw. 244, 251, 580 P.2d 405, 410 (1978).            The ICA’s

interpretation of HRS § 26-34 essentially provides the executive

with a means to bypass the will of the Senate by enabling a board

member to continue serving in a position that the Senate has

expressly recognized the member to be disqualified from filling.

Indeed, pursuant to the ICA’s opinion, the executive can leave

the disqualified member in that position until two years have

passed or until forced to appoint a new member by a court order

determining that the length of the holdover term has become

unreasonable.    See 128 Hawai#i at 377 n.2, 289 P.3d at 1013 n.2

(noting that Kanuha would be prevented from “serving

indefinitely” because the governor would be required to appoint a

successor “within a reasonable period of time”).           The legislative

history of the statute does not indicate that such an effect was

intended.

            According to the LUC, however, the Senate’s advice and

consent power is not diminished by permitting a rejected member

to continue serving as a holdover because “[a] holdover is an

extension of a term to which advice and consent of the Senate has

already been given.”     Thus, the LUC argues that the Senate’s

refusal to consent to the member’s nomination for a second term

has no effect on the member’s ability to serve as a holdover

because the Senate has already impliedly consented to the

holdover term.    However, a member’s authority to serve as a

holdover is not based on the Senate’s implicit consent.            Rather,

the authority for serving as a holdover derives from HRS § 26-34,

                                   -29-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

which expressly authorizes holdover members within the statutory

restrictions.   Moreover, even assuming that the Senate’s consent

for the member’s first term constitutes implied consent for the

member to serve as a holdover, any implicit consent would be

revoked upon the Senate expressly declining to consent to the

member’s nomination for a second term.         See Black’s Law, supra at

346 (defining “implied consent” as “[c]onsent inferred from one’s

conduct rather than from one’s direct expression”).

           Finally, any vacancies created by the Senate’s

rejection of an LUC member’s nomination may be filled by the

governor, who has the ability to nominate another individual or

to appoint an interim appointee under article V, section 6 of the

State constitution.     Even if a temporary vacancy were to occur

before the governor took such action, the vacancy would not

obstruct the LUC’s consideration of matters before it inasmuch as

the LUC is comprised of nine members and only six affirmative

votes are required for any boundary amendment.          HRS § 205-1.

                                    C.

           Accordingly, the plain language of HRS § 26-34(b) and

the legislative history of the holdover provision demonstrate

that the legislature intended to require a holdover to be a

member “who is not disqualified for membership under subsection

(a).”   A member whose nomination for a second term has been

rejected by the Senate is disqualified from serving another term

and therefore “disqualified for membership under subsection (a).”

The legislative history of the statute does not indicate that it

                                   -30-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

was the legislature’s sole intent to limit the length of time

that a holdover member was allowed to serve, without imposing any

other disqualifying factors.

          Additionally, interpreting HRS § 26-34(b) to solely

disqualify members who had served either two consecutive terms or

eight years is inconsistent with article V, section 6, which

disqualifies individuals rejected by the Senate from serving as

interim appointees.     Finally, interpreting the holdover provision

to allow a board member who has been rejected by the Senate to

continue serving up to two years after the expiration of the

member’s term or until a “reasonable time” has elapsed undermines

the Senate’s advice and consent power.

          The ICA therefore erred in determining that Kanuha

continued to serve as a valid holdover after the Senate’s

rejection of his nomination for a second term.

                                   III.

          Because Kanuha was not a valid holdover member of the

LUC under HRS § 26-34, his actions taken with respect to the

Reclassification Petition are invalid unless determined to be

valid through an application of the de facto officer doctrine.

                                    A.

          This court has defined an “officer de jure” as “one who

is in all respects legally appointed . . . and qualified to

exercise the office[.]”     Office of Hawaiian Affairs v. Cayetano,

94 Hawai#i 1, 7, 6 P.3d 799, 805 (2000) (quotation marks and

brackets omitted) [hereinafter OHA].        In contrast, a “de facto

                                   -31-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

official” is “one who by some color of right is in possession of

an office, and for the time being performs his or her duties with

public acquiescence, though having no right in fact[.]”             63C Am.

Jur. 2d Public Officers and Employees § 23 (2d ed. 2009)

(emphasis added).

            The de facto officer doctrine gives legal effect to the

public acts of de facto officers, id., and precludes challenges

to government action “on the ground that the officials who took

the action were improperly in office.”          Andrade v. Lauer, 729

F.2d 1475, 1496-97 (D.C. Cir. 1984).         In OHA, this court

recognized that “[c]ourts have consistently held that actions

taken by de facto officeholders are valid and enforceable.”                94

Hawai#i at 7, 6 P.3d at 805.

            The de facto officer doctrine was adopted from the

common law of England.      See Kathryn A. Clokey, The De Facto

Officer Doctrine: The Case for Continued Application, 85 Colum.

L. Rev. 1121, 1125 (1985) (“The doctrine was received in this

county as part of the common law, and the United States has

become the locus of its most prolific development.”) (footnote

omitted).    “[T]he doctrine’s purpose is to protect the public’s

reliance on an officer’s authority and to ensure the orderly

administration of government by preventing technical challenges

to an officer’s authority.”       63 Am. Jur. 2d § 23.

            In OHA, this court identified the following four

circumstances in which an officer becomes a de facto officer:

            A officer becomes a de facto officer under four
            circumstances: (1) by exercising his or her duties without a

                                    -32-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

          known appointment or election, but under such circumstances
          of reputation or acquiescence as were calculated to induce
          people, without inquiry, to submit to or invoke his or her
          action, supposing him or her to be the officer he or she
          assumed to be; (2) where the official exercises his or her
          duties under color of known and valid appointment or
          election, but fails to conform to some precedent,
          requirement, or condition, such as to take an oath, give a
          bond, or the like; (3) under color of a known election or
          appointment, void because the officer was not eligible, or
          because there was a want of power in the electing or
          appointing body, or by reason of some defect or irregularity
          in its exercise, such ineligibility, want of power, or
          defect being unknown to the public; or (4) under color of
          any election or an appointment by or pursuant to a public
          unconstitutional law, before the same is adjudged as such.

94 Hawai#i at 7, 6 P.3d at 805.

          During oral argument, counsel for the LUC indicated

that the third category delineated by the OHA court would be

applicable to the circumstances of this case.          Oral Argument at

40:49-41:08 (Feb. 7, 2013), Sierra Club v. Castle & Cooke Homes

Haw., Inc., No. SCWC-11-0000625, available at

http://state.hi.us/jud/oa/13/SCOA_020713_11_0625.mp3 [hereinafter

Oral Argument].    Under the third OHA category, an officer becomes

a de facto officer when exercising his or her duties “under color

of a known . . . appointment, void because the officer was not

eligible, or because there was a want of power in the electing or

appointing body, or by reason of some defect or irregularity in

its exercise, such ineligibility, want of power, or defect being

unknown to the public[.]”      Id. (emphases added).       “Color” means

“[a]ppearance, guise, or semblance; esp., the appearance of a

legal claim to a right, authority, or office.”          Black’s Law,

supra at 301.

          Consequently, in order for the third category to apply,

the officer must appear to have legal authority and the defect in

                                   -33-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

the officer’s eligibility must be unknown to the public.            In this

case, the Senate rejected Kanuha’s nomination for a second term

on April 26, 2010, which effectively served as public notice that

Kanuha was ineligible to serve as a holdover member.

Additionally, the Sierra Club filed its Motion to Disqualify with

the LUC on September 8, 2010, prior to the LUC’s September 23,

2010 vote to approve the Reclassification Petition and the

October 15, 2010 vote to approve the Decision and Order.            The

defect in Kanuha’s eligibility to continue serving as a holdover

member was therefore known to the public, Castle & Cooke, and the

LUC when Kanuha participated in the voting on the

Reclassification Petition.      Under these circumstances, it cannot

be said that Kanuha was a de facto officer pursuant to the third

OHA category.

          The other categories set forth in OHA are similarly

inapplicable in this case.      In contrast to the other three

categories, which involve appointed officers with defective

appointments, the first OHA category refers to an officer who was

not appointed in the first instance, but who has nevertheless

been holding himself or herself out as a de jure officer: “(1) by

exercising his or her duties without a known appointment or

election, but under such circumstances of reputation or

acquiescence as were calculated to induce people, without

inquiry, to submit to or invoke his or her action[.]”            94 Hawai#i

at 7, 6 P.3d at 805 (emphasis added).        In this case, the issue is

not whether Kanuha was appointed to be an LUC officer at all.


                                   -34-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

Kanuha was validly appointed to serve his first term.            However,

following his first term, he was disqualified from continuing to

serve as a de jure holdover because of the Senate’s rejection of

his nomination for a second term.         The first OHA category is

therefore inapplicable to the facts of this case.

            In regard to the second OHA category, Kanuha was not

exercising his duties “under color of a known and valid

appointment . . . , but fail[ing] to conform to some precedent,

requirement, or condition, such as to take an oath, give a bond,

or the like[.]”    Id.   As stated, Kanuha was not acting under

“color” of a valid appointment, given the public nature of the

Senate’s rejection of his nomination.         The Senate’s rejection,

which disqualified Kanuha from holdover status, is also unlike

the failure to conform to a technical requirement such as taking

an oath, furnishing a bond, or being under the required age for

members.    See Black’s Law, supra at 1194 (a de facto officer may

have “failed to qualify for office for any one of various

reasons, [such] as . . . being under the required age, having

failed to take the oath, [or] having not furnished a required

bond”).    Such imperfections in an officer’s authority are more

likely to be overlooked by members of the public who rely on the

finality of government decisions, thereby necessitating the

application of the de facto officer doctrine.          In this case,

however, the Senate publicly rejected Kanuha’s nomination for a

second term, which served as notice of Kanuha’s disqualification

to the public, the LUC, and Castle & Cooke.


                                   -35-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

            Finally, with respect to the fourth OHA category,

Kanuha was not exercising his duties “under color of [an]

election or an appointment by or pursuant to a public

unconstitutional law, before the same is adjudged as such.”             94

Hawai#i at 7, 6 P.3d at 805.      In OHA, the court found that this

definition was applicable, where eight trustees of the Office of

Hawaiian Affairs “were elected under the color of an election

pursuant to an unconstitutional public law, before the law was

adjudged to be unconstitutional” by the U.S. Supreme Court in

Rice v. Cayetano, 528 U.S. 495 (2000).         94 Hawai#i at 4-5, 8, 6

P.3d at 801-02, 805.     The court held that the trustees became de

facto officials following the Rice v. Cayetano decision.            Id. at

7-8, 6 P.3d at 805-06.     In this case, there is no issue regarding

whether Kanuha was appointed pursuant to an unconstitutional

public law; rather, the issue is whether Kanuha was disqualified

from holdover status pursuant to a valid public law.

            Accordingly, Kanuha is not a de facto officer under the

parameters of the doctrine articulated by this court in OHA.

                                    B.

            Counsel for the LUC argued during oral argument that

the four OHA categories were merely “examples” of how one becomes

a de facto officer, and do not constitute an exhaustive list.

Oral Argument at 41:04-42:00.       However, nothing in the OHA

decision indicates that there are other bases, outside of the

four enumerated categories, for invoking the de facto officer

doctrine.    The court did not provide that an officer becomes a de

                                   -36-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

facto officer under certain circumstances, including the four

categories.    Rather, the court affirmatively stated that an

“officer becomes a de facto officer under four circumstances[.]”

94 Hawai#i at 7, 6 P.3d at 805 (emphasis added).

            In addition, the four OHA categories were first

articulated by the Connecticut Supreme Court in State v. Carroll,

38 Conn. 449 (1871).     The Carroll court undertook a review of

English and American cases invoking the doctrine and found that

the cases did not provide a concise general definition of the

doctrine.    Id. at 467-71.    The court explained that it was

“[d]oubtless” that the de facto doctrine requires “color of

election or appointment from competent authority.”           Id. at 471.

The court then provided the four-part definition of the doctrine,

stating that the definition was “sufficiently accurate and

comprehensive to cover the whole ground” of the de facto officer

doctrine.    Id. at 471-72.    The court stated that “[a]nything less

comprehensive and discriminating will, I think, be imperfect and

deceptive as a definition.”      Id. at 472.

            Subsequently, the U.S. Supreme Court favorably cited

Carroll, calling the opinion “an elaborate and admirable

statement of the law . . . on the validity of the acts of de

facto officers, however illegal the mode of their appointment.”

Norton v. Shelby Cnty., 118 U.S. 425, 445-46 (1886).            See Clokey,

supra at 1125 (“In State v. Carroll, the Connecticut Supreme

Court articulated the definitive American expression of the

doctrine[.]”) (footnote omitted) (emphasis added); People v.

                                   -37-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

Wortman, 165 N.E. 788, 789 (Ill. 1928) (“The definition of an

officer de facto in the case of [Carroll] has been approved by

many courts.”).    The Shelby Court further considered whether the

fourth Carroll category was applicable to the circumstances of

that case, before holding that the definition did not apply where

the issue was the unconstitutionality of the act creating the

office itself.    118 U.S. at 446.     The Court held that the public

officers in that case were mere usurpers rather than de facto

officers, and reasoned that its decision was “in harmony” with

Carroll.    Id. at 445.

            The OHA court’s definition of the de facto officer

doctrine, which is identical to the Carroll court’s definition,

should therefore be considered a definitive expression of the

doctrine.

            Nevertheless, counsel for the LUC argued that the OHA

court’s definition of a de facto officer is not dispositive

because in In re Sherretz, 40 Haw. 366, 373 (Terr. 1953), the

court applied a more general standard for determining an

officer’s de facto status.      Oral Argument at 41:25-42:00.         In

Sherretz, the court acknowledged several definitions frequently

given to de facto officers.       40 Haw. at 372-73.     The court also

reviewed numerous cases on the issue of de facto officers,

including Carroll, which the court viewed favorably, stating that

Carroll “gives a comprehensive definition of an officer de

facto.”    Id. at 377-78.   The court then recited the four

Carroll/OHA categories.     Id.    The court concluded, based on its

                                   -38-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

review of a wide variety of cases, the public officer in that

case “came within the requirements of a de facto official.”             Id.

at 380.   Inasmuch as the Sherretz court did not adopt a

definitive definition of the de facto officer doctrine, it is not

dispositive in this case.      Moreover, the Caroll definition that

was viewed favorably by the Sherretz court was later expressly

adopted by this court in OHA.

            The four OHA categories thus constitute a comprehensive

definition of the de facto officer doctrine as adopted by this

court.    In this case, Kanuha does not qualify as a de facto

holdover under any of the four tests because of the uniqueness of

the Senate’s rejection of his nomination as a disqualifying

defect.

                                    C.

            Furthermore, not only does Kanuha fail to qualify as a

de facto officer under the four OHA categories, he also fails to

qualify under the most basic, fundamental understanding of the

doctrine.

            The very basis of a de facto officer’s authority is the

appearance or color of authority.         See Black’s Law, supra at 301

(defining “color” as “the appearance of a legal claim to a right,

authority, or office”); Sherretz, 40 Haw. at 373 (all that is

required is possession of office, performance of duties, and

“claiming to be such officer under color of an election or

appointment”) (quotation marks omitted); Carroll, 38 Conn. at 471

(“Doubtless color of election or appointment from competent

                                   -39-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

authority is necessary for the protection of an officer de

facto.”); Nguyen v. United States, 539 U.S. 69, 77 (2003) (de

facto officer doctrine “confers validity upon acts performed by a

person acting under the color of official title even though it is

later discovered that the legality of that person’s appointment

or election to office is deficient.”) (quotation marks omitted)

(emphasis added); Equal Emp’t Opportunity Comm’n v. Sears,

Roebuck & Co., 650 F.2d 14, 18 (2d Cir. 1981) (“Since the primary

purpose of the doctrine is to protect the public and the

government agencies which act in reliance on the validity of an

officer’s actions,” the officer’s “appearance to others” is more

directly pertinent than the officer’s own knowledge of defects in

title).   Because appearance of right is the essence of a de facto

officer’s authority, “[i]f an official’s claim to office is known

to be unlawful, the notoriety of his title defect prevents a

finding of color of authority.”       Clokey, supra at 1123.       See

Gutierrez v. Guam Election Comm’n, No. WRM10-003 2011 WL 768694,

at *16 (Guam Terr. Feb. 3, 2011) (“A de facto officer performs

duties under color of right, or color of official title, when a

defect in the officers authority . . . escapes public notice.”).

          This emphasis on appearance of authority is consistent

with the primary interests served by the de facto officer

doctrine, which are the protection of “citizens’ reliance on past

government actions and the government’s ability to take effective

and final action[.]”     Andrade, 729 F.2d at 1499.        If a public

officer is, by all appearances, exercising his or her duties

                                   -40-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

under color of authority, then it is in the public interest to

grant validity to the officer’s actions even if it is later

discovered that the officer’s authority was defective.            See

Norton, 118 U.S. at 445 (“The official acts of [de facto

officers] are recognized as valid on grounds of public policy,

and for the protection of those having official business to

transact.”) (quotation marks omitted); State v. Oren, 627 A.2d

337, 339 (Vt. 1993) (“Third persons are entitled to rely on the

actions of such public officers without the necessity of

investigating their title.”).

          In Sherretz, the court applied the de facto officer

doctrine to validate the acts of a member of the civil service

commission, who continued to serve on the commission after

accepting an appointive office as a notary public.           40 Haw. 366.

While declining to determine whether the member rendered himself

ineligible to serve on the commission by accepting the appointive

office, the court concluded that the member was at least a de

facto official, reasoning: “It is undisputed that Kum was in

possession of the office, performing its duties, claiming to be

an officer under color of an appointment, his right unquestioned

by the appointing authority or by the other members of the

commission operating with him; he thus came within the

requirements of a de facto official.”        Id. at 380 (emphasis

added).   On the above basis, the member’s “acts were as valid as

though he had an undisputed legal title.”         Id.




                                   -41-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

            In this case, however, the defect in Kanuha’s authority

was known to the public following his rejection by the Senate.

The Senate’s act of rejecting his appointment occurred in the

most public of venues, with the Senate committee that reviewed

Kanuha’s nomination expressing concern over Kanuha’s lack of

experience and knowledge in traditional Hawaiian land usage and

cultural practices.     S. Stand. Comm. Rep. No. 3208, 2010 Senate

Journal, at 1332.    Subsequently, during the floor debates on his

nomination, Senate members again focused on Kanuha’s lack of

experience and knowledge before voting to reject his nomination.

2010 Senate Journal, at 561-64.       Even assuming this very public

Senate proceeding was not known to the LUC, following the filing

of the Sierra Club’s Motion to Disqualify, the LUC and Castle &

Cooke clearly would have become aware of Kanuha’s

disqualification.    Thus the notoriety of Kanuha’s title defect

following the Senate’s rejection prevents a finding of color of

authority, which is a critical component of the de facto officer

doctrine under any definition of the doctrine.

                                    D.

            Finally, applying the de facto officer doctrine to

validate Kanuha’s votes on the Reclassification Petition in this

case would be contrary to the public policy purposes of the

doctrine.

            As previously referenced, “[t]he de facto doctrine was

ingrafted upon the law some five hundred years ago as a matter of

policy and necessity to protect the interests of the public and

                                   -42-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

individuals involved in official acts of a person exercising the

duty of an officer without actually being one in strict point of

law.”   Sherretz, 40 Haw. at 373 (emphasis added).          In Carroll,

the court explained that “[a]n officer de facto is one whose

acts, though not those of a lawful officer, the law, upon

principles of policy and justice, will hold valid so far as they

involve the interests of the public and third persons[.]”             38

Conn. at 471 (emphasis added).

           The de facto officer doctrine therefore stems from an

assumption that it protects the public.         See Ryder, 515 U.S. at

180 (purpose of doctrine is “to protect the public by insuring

the orderly functioning of the government despite technical

defects in title to office”) (quotation marks and citation

omitted); Hussey v. Smith, 99 U.S. 20, 24 (1878) (“The acts of

such [de facto] officers are held to be valid because the public

good requires it.    The principle wrongs no one.”) (emphasis

added).

           Consequently, while the OHA/Carroll categories

establish the outer parameters for the application of the de

facto officer doctrine, public interest is clearly a significant

factor to consider when applying the doctrine.          In this case, the

public interest is not served by validating Kanuha’s actions

through an application of the de facto officer doctrine.            The

LUC’s consideration of the Reclassification Petition was a matter

of great importance to the community, as it involved the proposed



                                   -43-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

reclassification and long-term development of land in Waipi#o and

Waiawa from an agricultural to urban district.

           The LUC’s role in this process was to consider the

impact of the proposed reclassification on areas of state

concern, including the maintenance of valued cultural,

historical, or natural resources.         See HRS § 205-17 (Supp. 2010)

(setting forth LUC decision-making criteria); HAR § 15-15-77

(setting forth LUC decision-making criteria for boundary

amendments).    HRS §§ 205-1 and 205-4 expressly require six of the

nine LUC members to vote in favor of any boundary amendment.                In

1961 when the land use law was enacted and the LUC was

established, the LUC consisted of seven members, and six

affirmative votes were required to approve district boundary

amendments.    1961 Haw. Sess. Laws Act 187, §§ 2, 6 at 300-01.

Comparatively, only five affirmative votes were required for

granting special permits.      1961 Haw. Sess. Laws Act 187, § 7 at

302.   See 1963 Haw. Sess. Laws Act 205, §§ 1-2 at 315-19

(clarifying Act 187, retaining six vote requirement for boundary

amendments and amending special permit approval to require

majority approval).

           In 1975, the land use law was reformed and the LUC

became a nine-member commission.       1975 Haw. Sess. Laws Act 193,

§§ 1-2 at 441.    The original bill did not propose amending HRS §

205-1 to require six affirmative votes for any boundary

amendment.    H.B. 1870, 8th Leg., Reg. Sess. (1975).         The

conference committee amended the bill to add the six affirmative


                                   -44-
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

votes requirement to HRS § 205-1.          H.B. 1870, H.D. 1, S.D. 3,

C.D. 1, 8th Leg., Reg. Sess. (1975).          The committee explained

that the purpose of the amendment was to “make it express that

six affirmative votes are required for the Commission to amend

any land use district boundary,” in order to “bring[] the bill

into conformity with the existing provision of the land use law

in this regard.”     Conf. Comm. Rep. No. 23, in 1975 House Journal,

at 890.

            Thus, the legislature has always been particularly

concerned with the LUC’s approval of district boundary amendments

and has retained the six-vote requirement throughout the history

of the land use law because of the importance of such amendments.

It is manifest that the legislature intended for the six required

votes to be cast by individuals who qualified under the law to

serve as LUC commissioners.       The legislature would not have

contemplated that the prescribed number of votes required for a

boundary amendment could be compromised by an unqualified LUC

member’s participation in voting.

            In addition, the LUC is required under article XII,

section 7 of the Hawai#i Constitution to “preserve and protect

customary and traditional practices of native Hawaiians.”19 Ka

Pa#akai O Ka#Aina v. Land Use Comm’n, 94 Hawai#i 31, 45, 7 P.3d



      19
            The constitutional provision provides: “The State reaffirms and
shall protect all rights, customarily and traditionally exercised for
subsistence, cultural and religious purposes and possessed by ahupua a tenants
who are descendants of native Hawaiians who inhabited the Hawaiian Islands
prior to 1778, subject to the right of the State to regulate such rights.”
Haw. Const. art. XII, § 7.

                                    -45-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

1068, 1082 (2000).    Consistent with this constitutional

provision, HRS § 205-1 requires one member of the LUC to have

“substantial experience or expertise in traditional Hawaiian land

usage and knowledge of cultural land practices.”

            At least some members of the Senate rejected Kanuha’s

nomination for a second term based on their belief that Kanuha

was being nominated to serve as the designated member and that

Kanuha was not qualified for the position because of his limited

knowledge and experience in traditional Hawaiian land usage.                See

2010 Senate Journal, at 561-62 (remarks by Senators Hee and

Hemmings).    Senator Hemmings stated that the Senate had “no

choice but to vote ‘no’” on Kanuha’s nomination “in order to stay

compliant” with HRS § 205-1.      Id. at 564.

            Under these circumstances, it is apparent that the

public’s interest is not protected by giving de facto validity to

Kanuha’s votes.    Rather, the public good is served when the

applicable statutes are followed, in order to ensure that the

individuals who are deciding whether the project should be

approved are actually qualified under the law to render such a

decision.    Allowing a disqualified commissioner to participate in

the LUC’s consideration of a petition has the effect of

undermining the Senate’s advice and consent power and undermining

the laws the legislature and the LUC itself specifically put in

place on behalf of the public.       See HRS § 205-1 (requiring six

affirmative votes for any boundary amendment and requiring a

member with expertise in Hawaiian land usage and cultural land


                                   -46-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

practices); HRS § 205-4(h) (requiring six affirmative votes for

any boundary amendment); HAR § 15-15-13(a) (requiring LUC to have

six affirmative votes to approve boundary amendments under HRS §

205-4).

          The public interest in having six valid, qualified

votes determine the Reclassification Petition, in having an LUC

member who has the requisite expertise and experience in Hawaiian

land usage, and in having the Senate’s input in reviewing and

appointing LUC members, are undermined and frustrated by giving

de facto validity to Kanuha’s actions.

          Second, a stated purpose of the de facto doctrine is

its intent to facilitate government efficiency.          63C Am. Jur. 2d

§ 23 (“the doctrine’s purpose is to . . . ensure the orderly

administration of government by preventing technical challenges

to an officer’s authority”); Norton, 118 U.S. at 441-42

(“[P]rivate parties are not permitted to inquire into the title

of persons . . . in apparent possession of their powers and

functions . . . .    It is manifest that endless confusion would

result if in every proceeding before such officers their title

could be called in question.”).       Permitting challenges to the

actions of public officials based on the mere potential of

technical shortcomings in an officer’s authority such as the

failure to take an oath or to furnish payment would adversely

impact the orderly functioning of government.

          In this case, however, the Sierra Club’s challenge to

Kanuha’s participation in the Reclassification Petition

                                   -47-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

proceedings was based on the knowledge that the Senate had

rejected Kanuha’s nomination for a second term.          It was not based

on the type of unlimited conjecture that the doctrine is intended

to protect against.     Additionally, the Sierra Club filed its

Motion to Disqualify with the LUC prior to the LUC’s votes on the

Reclassification Petition, rather than waiting for the outcome of

the vote to challenge Kanuha’s participation.          See Glidden Co. v.

Zdanok, 370 U.S. 530, 535 (1962) (de facto officer doctrine is

intended to “prevent[] litigants from abiding the outcome of a

lawsuit and then overturning it if adverse upon a technicality of

which they were previously aware”).

          Thus the dual purposes of the de facto officer

doctrine, “to protect the public’s reliance on an officer’s

authority and to ensure the orderly administration of

government,” 63C Am. Jur. 2d § 23, are not served by applying the

doctrine in this case.     This case is not one in which the “public

good requires” that Kanuha’s actions be held valid, Hussey, 99

U.S. at 24 (emphasis added).      On the contrary, applying the

doctrine to validate Kanuha’s actions with respect to the

Reclassification Petition would have the effect of harming the

public’s interest, which is protected when qualified public

officials deliberate on matters of public significance. The

interests of the public and third persons require Kanuha’s

actions to be invalidated as those of a disqualified officer.



                                    IV.

                                   -48-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

           The invalidation of Kanuha’s actions with respect to

the Reclassification Petition raises the question of whether the

LUC’s approval of the petition must also be invalidated.

           As stated, the Reclassification Petition proposed

amending the land use district boundary to reclassify 767 acres

of land.   The Reclassification Petition was filed pursuant to HRS

§ 205-4 and HAR § 15-15.      On September 23, 2010, the LUC voted to

approve the Reclassification Petition by a vote of 7-1, with

Kanuha voting in favor of approval and one commissioner being

excused.   Subsequently on October 15, 2010, the LUC voted to

approve the Decision and Order by a vote of 6-0, with Kanuha

voting in favor of approval.

           HRS § 92-15 (1993) provides that when “the number of

members necessary to validate any act . . . is not specified . .

. in any other law or ordinance, . . . the concurrence of a

majority of all the members to which the board or commission is

entitled shall be necessary to make any action of the board or

commission valid.”    (Emphasis added).      In this case, the relevant

statutes and rules expressly provide that six affirmative votes

are required for the LUC’s approval of any boundary amendment.

           HRS § 205-4(h) (Supp. 2010) provides that “[s]ix

affirmative votes of the commission shall be necessary for any

boundary amendment” to land areas greater than fifteen acres.

See HRS § 205-1 (Supp. 2010) (“Six affirmative votes shall be

necessary for any boundary amendment.”).         HAR § 15-15-13(a)

(2000), governing the LUC’s rules for quorum and number of votes

                                   -49-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

necessary for a decision, confirms that “unless otherwise

provided by law, . . . the concurrence of a majority of all the

members to which the commission is entitled shall be necessary to

make a commission decision valid provided all approvals of

petitions for boundary amendments under section 205-4, HRS, shall

require six affirmative votes[.]”         (Emphasis added).     Thus, HRS §

92-15 is not applicable.      Without Kanuha’s disqualified vote, the

LUC lacked the requisite six affirmative votes to approve the

Decision and Order on October 15.

          The LUC and Castle & Cooke, however, argued to the ICA

that HRS § 92-15 was applicable to the LUC’s approval of the

Decision and Order because the October 15 vote “was an

administrative or ministerial act to memorialize the LUC’s

approval vote on September 23, 2010, and not [part of] the

district boundary amendment action[.]”

          There is no merit to the argument that the LUC’s vote

to approve the Decision and Order was not part of the LUC’s

decision on the Reclassification Petition.         Rather than

constituting a mere ministerial act rubber-stamping the LUC’s

September 23 vote, the Decision and Order was statutorily

required and constituted an integral part of the LUC’s decision

to approve the boundary amendment requested in the

Reclassification Petition.

          Under HRS § 205-4(g) (2001), the LUC is required to

approve, deny, or modify a petition for a district boundary

amendment involving land areas greater than fifteen acres “by

                                   -50-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

filing findings of fact and conclusions of law”:

            [T]he commission, by filing findings of fact and conclusions
            of law, shall act to approve the petition, deny the
            petition, or to modify the petition by imposing conditions
            necessary to uphold the intent and spirit of this chapter or
            the policies and criteria established pursuant to section
            205-17 or to assure substantial compliance with
            representations made by the petitioner in seeking a boundary
            change.

(Emphasis added).     Accordingly, as the circuit court ruled in

this case, the act of “filing findings of fact and conclusions of

law” is not only part of the LUC’s deliberation on the boundary

amendment, it is the final act required for the LUC to approve,

deny, or modify the petition at issue.

            Consistent with this requirement, HAR § 15-15-36(a)

(2000), entitled “Decisions and orders,” provides that “All

decisions and orders for boundary amendment and special permit

applications shall be signed by the chairperson or the

commissioners who have heard or examined the evidence in the

proceeding and have voted affirmatively on the decision.”

Additionally, “[u]nless otherwise indicated in the order, the

effective date of a decision and order shall be the date of

service.”    HAR § 15-15-36(b).      Thus, the LUC’s own rules indicate

that the LUC’s decision on a boundary amendment is made final and

effective only after the Decision and Order is signed and served.

            Moreover, in Life of the Land, Inc. v. West Beach

Development Corp., 63 Haw. 529, 534, 631 P.2d 588, 592 (1981),

the court held that the LUC’s oral denial of a party’s

intervention in a commission hearing was not a final decision

triggering the statute of limitations for an appeal.            The court


                                    -51-
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

interpreted an LUC rule containing substantially the same

language as HAR § 15-15-36(b), and explained that “the Commission

by its own rules expressly requires that its decisions be in

writing, signed, and are to be effective as of the date of

service.”20   Id.   Thus, the court held that the statute of

limitations “did not begin [to run] until after the date of

service of the duly signed written order” upon the party.              Id.

            Consequently, under HRS § 205-4 and HAR § 15-15-36(a),

an LUC decision on a boundary amendment petition is not final

until the findings of fact, conclusions of law and decision and

order are filed and served.       The LUC’s October 15 vote to approve

the Decision and Order in this case was therefore clearly part of

the LUC’s approval of the requested boundary amendments.             Thus,

based on a plain reading of HRS § 205-4, six affirmative votes

were required for the LUC to adopt the Decision and Order.

Absent Kanuha’s disqualified vote, only five members voted to

approve the Decision and Order.

            In addition, the LUC and Castle & Cooke’s attempt to

devalue the importance of the Decision and Order in this case is


      20
            The court interpreted Land Use Commission Rule 1-4(6), providing:

            1-4(6) Decisions and Orders. All decisions and orders shall
            be signed by the Commissioners who have heard and examined
            the evidence in the proceeding. Commission members who have
            not heard and examined all of the evidence may vote and sign
            only after the procedures set fort in section 91-11, HRS,
            have been complied with.
            (a)   Effective Date. Unless otherwise indicated in the
                  order, the effective date of a decision and order
                  shall be the date of service.

Life of the Land, Inc., 63 Haw. at 534 n.4, 631 P.2d at 592 n.4.



                                    -52-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

unsupported by the facts.      At the September 23 LUC meeting,

Chairman Devens explained that the “objective” of the meeting was

“to determine by way of motion the Commission’s decision on

whether to grant in whole . . . or in part Petitioner’s request

to reclassify the subject property or to deny the Petition and if

granted, what conditions of approval to impose.”           The Chairman

further explained that if a decision was reached at the meeting,

staff would “draft appropriate findings of fact, conclusions of

law and decision and order reflecting the Commission’s decision,”

which would then be “further deliberated at the next meeting.”

(Emphasis added).

          Consistent with the Chairman’s instructions, during the

September 23 meeting, Commissioner Chock expressed his

understanding that the LUC would deliberate on “key” conditions

of approval at a later date: “Some of the key issues that were

raised in terms of traffic and agriculture I think are very

important items that we can get a little further into when we

deliberate on conditions.”      He further stated that he would

“reserve the rest of my comments until we get into that specific

discussion.”   After the LUC’s vote to approve the

Reclassification Petition, Chairman Devens directed the staff “to

draft the appropriate findings of fact, conclusions of law that

will be hashed out at the next meeting.”         (Emphasis added).

          The resulting Decision and Order contains 279 findings

of fact, 10 conclusions of law, and 29 conditions to the

reclassification and incremental redistricting of the land at


                                   -53-
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

issue.     During the October 15, 2010 LUC meeting, the

commissioners suggested amendments to the conditions of approval

as well as to the findings of fact.21         These amendments had not

previously been discussed at the September 23 meeting.              There is

no indication in the record that any Commissioner was required to

vote to approve the Decision and Order based on their vote at the

prior meeting.      Rather, the record demonstrates that the October

15 deliberations were a critical component of the LUC’s decision

to approve the Reclassification Petition and were not simply

ministerial in nature.       The October 15 vote to approve the

Decision and Order thus concerned a boundary amendment and was

required to be approved by six affirmative votes.            Pursuant to

Kanuha’s disqualification, the boundary amendment only received

five affirmative votes.22

             The circuit court therefore correctly determined that

the LUC did not have the requisite six affirmative votes to

approve the Reclassification Petition.          Pursuant to HAR § 15-15-

13(b), findings of fact, conclusions of law, and a decision and


      21
             See supra note 6.
      22
             In light of our disposition, we do not address the validity of the
LUC’s vote at the September 23, 2010 meeting. Compare Waikiki Resort Hotel,
Inc. v. City & Cnty. of Honolulu, 63 Haw. 222, 249, 624 P.2d 1353, 1371 (1981)
(“We know of no reason, in the present case, why the invalid vote of one
member of the council should be held to invalidate the perfectly legal vote of
the other members.”) (quoting Marshall v. Ellwood City Borough, 41 A. 994 (Pa.
1899)), with Liberty Dialysis-Hawai#i, LLC v. Rainbow Dialysis, LLC, 130
Hawai#i 95, 126, 306 P.3d 140, 171 (2013) (Acoba, J., concurring and
dissenting, with whom Pollack, J., joins) (“The actual contribution of any
particular decision maker cannot be measured with precision, but frequently
extends significantly beyond the actual vote cast. . . . [A] significant
threat to accuracy can exist even when a particular vote was numerically
unnecessary for the decision.”) (quotation marks and citation omitted).

                                     -54-
    *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

order denying the Reclassification Petition should have been

filed by the LUC.23     Therefore, the circuit court properly

reversed the Decision and Order of the LUC.

                                     V.

              Based on the foregoing, the ICA gravely erred in

concluding that Kanuha was a valid holdover member when he

participated and voted on the Reclassification Petition.             The

Senate’s rejection of Kanuha’s nomination for a second term

disqualified Kanuha from serving as a holdover member under HRS §

26-34(b).    Kanuha’s actions taken with respect to the

Reclassification Petition are therefore invalid.            His actions are

not validated as those of a de facto officer because Kanuha does

not qualify as a de facto officer under the four categories

identified by this court in OHA.          Inasmuch as the de facto

officer doctrine only validates the acts of a de facto officer

“so far as they involve the interests of the public and third

persons,” Carroll, 38 Conn. at 471, the application of the

doctrine in this case would also be contrary to the doctrine’s

purpose.    Kanuha’s actions taken after his disqualification from

serving as a holdover member are therefore invalid.

            Because Kanuha was disqualified from participating in

the Reclassification Petition proceedings following the Senate’s

rejection, the LUC lacked the six affirmative votes required to



      23
            “If the commission's action on a petition for boundary amendment
under section 205-4, HRS, fails to obtain six affirmative votes, findings of
fact, conclusions of law, and decision and order denying the petition shall be
filed by the commission.” HAR § 15-15-13(b).

                                    -55-
   *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

approve the Reclassification Petition.         Accordingly, the ICA’s

judgment is reversed, and the circuit court’s judgment is

affirmed.

Robert D. Harris,                      /s/ Paula A. Nakayama
for petitioner
                                       /s/ Simeon R. Acoba, Jr.
Marissa H.I. Luning,
for respondent                         /s/ Sabrina S. McKenna
Land Use Commission of the
State of Hawai#i                       /s/ Richard W. Pollack

Benjamin M. Matsubara,
Curtis T. Tabata, and
Wyeth M. Matsubara,
for respondent
Castle & Cooke Homes Hawai#i,
Inc.




                                   -56-
