Constitution of Hawaii — Article 5

ARTICLE V

 

THE EXECUTIVE

 

Note

 

  This article was renumbered from Article IV to be Article V by Const Con 1978 and election Nov 7, 1978.  The former Article V now appears as Article VI.

 

ESTABLISHMENT OF THE EXECUTIVE

 

     Section 1.  The executive power of the State shall be vested in a governor.  The governor shall be elected by the qualified voters of this State at a general election.  The person receiving the highest number of votes shall be the governor.  In case of a tie vote, the selection of the governor shall be determined as provided by law.

     The term of office of the governor shall begin at noon on the first Monday in December next following the governor's election and end at noon on the first Monday in December, four years thereafter.

     No person shall be elected to the office of governor for more than two consecutive full terms.

     No person shall be eligible for the office of governor unless the person shall be a qualified voter, have attained the age of thirty years and have been a resident of this State for five years immediately preceding the person's election.

     The governor shall not hold any other office or employment of profit under the State or the United States during the governor's term of office. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  Tie vote, see §11-157.

 

Attorney General Opinions

 

  It may be impermissible for legislature to require elected officials to resign before running for governor.  Att. Gen. Op. 75-22.

  Political parties must run candidates for both the office of governor and office of lieutenant governor.  Att. Gen. Op. 78-3.

  The office of the governor is a constitutional office established by this section, and is not a principal department of the state executive branch listed in §26-4; thus, any agency that is not temporary and for special purposes cannot be validly placed within the office of the governor.  Att. Gen. Op. 96-1.

 

Law Journals and Reviews

 

  You Say You Want a Chevrolution?  Factors Predicting the Adoption of the Chevron Standard in Agency Deference at the State Level.  38 UH L. Rev. 447 (2016).

 

Case Notes

 

  Durational residency requirement for gubernatorial candidates does not violate equal protection.  639 F. Supp. 1552.

  Budget expenditures of the department of education, discussed.  70 H. 253, 768 P.2d 1279.

 

 

LIEUTENANT GOVERNOR

 

     Section 2.  There shall be a lieutenant governor who shall have the same qualifications as the governor.  The lieutenant governor shall be elected at the same time, for the same term and in the same manner as the governor; provided that the votes cast in the general election for the nominee for governor shall be deemed cast for the nominee for lieutenant governor of the same political party.  No person shall be elected to the office of lieutenant governor for more than two consecutive full terms.  The lieutenant governor shall perform such duties as may be provided by law. [Am HB 19 (1964) and election Nov 3, 1964; ren and am Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  Functions, generally, see §26-1.

 

Attorney General Opinions

 

  It may be impermissible for legislature to require elected officials to resign before running for lieutenant governor.  Att. Gen. Op. 75-22.

  Political parties must run candidates for both the office of the governor and office of lieutenant governor.  Att. Gen. Op. 78-3.

 

Law Journals and Reviews

 

  You Say You Want a Chevrolution?  Factors Predicting the Adoption of the Chevron Standard in Agency Deference at the State Level.  38 UH L. Rev. 447 (2016).

 

Case Notes

 

  Section requires that partisan candidate for governor seek nomination paired with a candidate for lieutenant governor of same political party.  81 H. 230, 915 P.2d 704.

  Section 26-2 provides order of succession that applies only after respective officers have properly been elected to public office; it does not relieve prospective candidate from compliance with this section during the qualification and nomination process.  81 H. 230, 915 P.2d 704.

 

 

COMPENSATION:  GOVERNOR, LIEUTENANT GOVERNOR

 

     Section 3.  REPEALED.  [Repeal HB 1917 (2006) and election Nov 7, 2006]

 

Cross References

 

  Statutory provision, see §26-51.

 

 

SUCCESSION TO GOVERNORSHIP; ABSENCE OR

DISABILITY OF GOVERNOR

 

     Section 4.  When the office of governor is vacant, the lieutenant governor shall become governor.  In the event of the absence of the governor from the State, or the governor's inability to exercise and discharge the powers and duties of the governor's office, such powers and duties shall devolve upon the lieutenant governor during such absence or disability.

     When the office of lieutenant governor is vacant, or in the event of the absence of the lieutenant governor from the State, or the lieutenant governor's inability to exercise and discharge the powers and duties of the lieutenant governor's office, such powers and duties shall devolve upon such officers in such order of succession as may be provided by law.

     In the event of the impeachment of the governor or of the lieutenant governor, the governor or the lieutenant governor shall not exercise the powers of the applicable office until acquitted. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  Under section, order of succession must be provided by law and the governor may not, under the governor's emergency powers, provide by executive order for the succession to office.  Att. Gen. Op. 61-87.

  Upon death of governor-elect, lieutenant governor, once qualified, would become governor.  Att. Gen. Op. 75-21.

 

 

EXECUTIVE POWERS

 

     Section 5.  The governor shall be responsible for the faithful execution of the laws.  The governor shall be commander in chief of the armed forces of the State and may call out such forces to execute the laws, suppress or prevent insurrection or lawless violence or repel invasion.  The governor shall, at the beginning of each session, and may, at other times, give to the legislature information concerning the affairs of the State and recommend to its consideration such measures as the governor shall deem expedient.

     The governor may grant reprieves, commutations and pardons, after conviction, for all offenses, subject to regulation by law as to the manner of applying for the same.  The legislature may, by general law, authorize the governor to grant pardons before conviction, to grant pardons for impeachment and to restore civil rights denied by reason of conviction of offenses by tribunals other than those of this State.

     The governor shall appoint an administrative director to serve at the governor's pleasure. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  Administrative director, see §26-3.

 

Attorney General Opinions

 

  Pardon for an offense upon conviction of which chauffeur's license is revoked does not restore right to license.  Att. Gen. Op. 61-79.

  Pardoning power extends to offenses against county ordinances.  Att. Gen. Op. 63-38.

 

Case Notes

 

  No authority found for the proposition that a pardon for a misdemeanor issued by the governor restores an offender's Second Amendment right to possess firearms only if the pardon specifically provides as such, or that a pardon would not allow plaintiff to purchase firearms in other states because the pardon would only be given effect in Hawaii.  49 F. Supp. 3d 727 (2014).

  The plain language of this section indicated that plaintiff could receive a pardon for plaintiff's harassment convictions under §711-1106(1)(a) and, therefore, statutorily qualify under federal law to possess firearms.  49 F. Supp. 3d 727 (2014).

  Cited:  715 F. Supp. 2d 1115 (2010).

 

 

EXECUTIVE AND ADMINISTRATIVE OFFICES

AND DEPARTMENTS

 

     Section 6.  All executive and administrative offices, departments and instrumentalities of the state government and their respective powers and duties shall be allocated by law among and within not more than twenty principal departments in such a manner as to group the same according to common purposes and related functions.  Temporary commissions or agencies for special purposes may be established by law and need not be allocated within a principal department.

     Each principal department shall be under the supervision of the governor and, unless otherwise provided in this constitution or by law, shall be headed by a single executive.  Such single executive shall be nominated and, by and with the advice and consent of the senate, appointed by the governor.  That person shall hold office for a term to expire at the end of the term for which the governor was elected, unless sooner removed by the governor; except that the removal of the chief legal officer of the State shall be subject to the advice and consent of the senate.

     Except as otherwise provided in this constitution, whenever a board, commission or other body shall be the head of a principal department of the state government, the members thereof shall be nominated and, by and with the advice and consent of the senate, appointed by the governor.  The term of office and removal of such members shall be as provided by law.  Such board, commission or other body may appoint a principal executive officer who, when authorized by law, may be an ex officio, voting member thereof, and who may be removed by a majority vote of the members appointed by the governor.

     The governor shall nominate and, by and with the advice and consent of the senate, appoint all officers for whose election or appointment provision is not otherwise provided for by this constitution or by law.  If the manner of removal of an officer is not prescribed in this constitution, removal shall be as provided by law.

     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.

     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.

     Every officer appointed under the provisions of this section shall be a citizen of the United States and shall have been a resident of this State for at least one year immediately preceding that person's appointment, except that this residency requirement shall not apply to the president of the University of Hawaii. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  Allocation of departments, see chapter 26.

  Temporary agencies, see §26-41.

  Term of board members, see §26-34.

 

Attorney General Opinions

 

  Residence requirement.  Not applicable to president of University of Hawaii.  Att. Gen. Op. 61-84.  Applicable to superintendent of public instruction.  Att. Gen. Op. 62-5.  The superintendent of education appointed by the elected board of education need not be a resident of the State.  Att. Gen. Op. 66-27.

  Appointment of chairpersons of the various boards by the governor and authorizing delegation of powers to them are not contrary to this section.  Att. Gen. Op. 64-18.

  First paragraph requires that state executive branch agencies be placed within the principal departments of the executive branch of state government, unless they are agencies or commissions that are both temporary and for special purposes.  Att. Gen. Op. 96-1.

  The interim appointments provision of this section is self-executing.  The interim appointments authority granted by this section may be exercised by the governor subject only to the conditions imposed by the constitution itself.  The term "vacancy" in the interim appointments provision includes positions made vacant for purposes of appointment, that is, the end of the established term for the relevant office.  Att. Gen. Op. 16-3.

  The word "appointed" in §26-34(b) does not purport to prevent the governor from exercising the governor's authority to make interim appointments; there is no conflict between §26-34(b) and this section.  Therefore, §26-34(b) is constitutional.  Att. Gen. Op. 16-3.

  The word "qualified" in §269-2 does not purport to prevent the governor from exercising the interim appointments authority in this section; thus, there is no conflict between §269-2 and this section.  Therefore, §269-2 is constitutional.  Att. Gen. Op. 16-3.

 

Case Notes

 

  No unconstitutional delegation of powers was involved in federal-state arrangement for jurisdiction over air carriers.  44 H. 634, 651-53, 361 P.2d 390.

  Not violated by administrative revocation program.  76 H. 380, 878 P.2d 719.

  Article VI, §1 and this section, neither separately nor together prohibit the establishment of the administrative driver’s license revocation office in the judiciary.  91 H. 212 (App.), 982 P.2d 346.