In a swift rebuke, the state Supreme Court yesterday ordered Gov. Linda Lingle to nominate replacements for six members of the University of Hawai'i Board of Regents that the governor has kept as holdovers since their terms expired at the end of June.

One of the holdovers is Kitty Lagareta, a communications executive and the governor's friend and former political adviser, who was rejected for a second term on the board by the Senate in May.

The court's order, which came just hours after justices heard arguments in the case, found that Lingle's actions violated state law. The court gave the governor 30 days to nominate replacements, who will serve on the board pending confirmation by the state Senate.

State Senate President Colleen Hanabusa, D-21st (Nanakuli, Makaha), and state Sen. Norman Sakamoto, D-15th (Waimalu, Airport, Salt Lake), the chairman of the Senate Education Committee, sought the extraordinary court order against the governor.

The senators argued that Lingle was ignoring state law through the holdovers and also undermining the Senate's advise and consent powers over her nominations.

"The law was adopted. The governor knew what it said. And for her to just simply decide she doesn't have to comply with it was, to me, phenomenal," Hanabusa said.

Lingle's office, in a statement, said the governor was disappointed with the court's ruling but would comply.

"The statute the Legislature passed set no deadlines of any kind for the governor to make appointments to the Board of Regents from the lists presented to her," the governor's office said. "In addition, the statute allowed sitting regents to hold over for an unspecified period of time.

"Given these facts, and the legal advice the governor received from the Department of the Attorney General, it appeared clear that the governor was not under any legal duty to immediately appoint regents from the lists forwarded to her."

The governor's office said the court "has apparently construed the statute to have a time requirement in this situation, rather than leaving it to the Legislature to amend the statute, if the Legislature wished to do so."

LEGAL CHALLENGE

Senate Democrats and the Republican governor have been in conflict over the regent nomination process for several years, and the legal challenge posed separation of powers questions between the legislative and executive branches of state government.

Voters approved a constitutional amendment in 2006 that called for an advisory council to recommend potential regent nominees to the governor. The governor previously had sole discretion to choose nominees for Senate confirmation. The Legislature created an advisory council over Lingle's veto in 2007.

In February, the advisory council provided Lingle with a list of potential regent nominees to fill a dozen vacancies on the 15-member board.

Lingle made several regent nominations, including some who were confirmed by the Senate. But Lagareta, who was not confirmed, and five other regents were not replaced by the time their terms expired at the end of June.

The governor chose to keep the six regents on as holdovers over the Senate's objections. Hanabusa and Sakamoto filed the legal challenge, known as a writ of mandamus, with the Supreme Court. Such writs are considered extraordinary legal remedies.

In arguments before the court yesterday, deputy attorney general Charlene Aina, who represented Lingle, said state law allows the holdovers to serve until their replacements are nominated and confirmed by the Senate. Aina said the governor could theoretically keep the holdovers on the board until her term expires in 2010.

But Jon Van Dyke, a UH-Manoa constitutional law professor who represented the Senate, said Lingle had until the end of June to make the appointments and was manipulating the law for her favored regents. He said keeping the six regents as holdovers has created a legal cloud over board decisions.

"It's clear that she's manipulating the process," Van Dyke told the court.

Van Dyke said voters and lawmakers intended for the advisory council to recommend potential regent nominees to the governor and for those nominations to be made prior to the end of June. Lawmakers had extended the terms of some of the regents to give time for the transition to happen.

HANABUSA WARNING

Senate Democrats urged Lingle to make the nominations several times before the last regular session ended in May. Hanabusa also warned the UH board about the potential consequences of allowing the six regents to stay on as holdovers.

"There is a big cloud over everything the regents are doing at the present time," Van Dyke told the court.

Several justices pressed Aina to describe what the state considered a reasonable amount of time for the governor to make her nominations. Aina declined to be specific about a deadline. But she said case law suggested that two or three years would be reasonable and that state law generally allows holdovers to remain on boards and commissions for two legislative sessions.

Asked by Associate Justice Steven Levinson whether the holdovers could remain until Lingle completed her term in 2010, Aina answered: "It's a factual possibility."

The court's order yesterday did not explain the rationale for the decision but the justices indicated that an opinion will follow. Lingle must make the regent nominations from the list provided by the advisory council in February.

Lagareta, who has served as a regent since 2003, said the board during her tenure was able to remove some of the past micromanagement and allow the president and chancellors to operate with greater flexibility. She also said the board helped with the university's centennial celebration and made adjustments on issues such as tuition that would position the university for the future.

"It's a volunteer job. It takes a whole lot of time. I've been happy and honored to do it since 2003, and just as happy to be out of the political limbo," said Lagareta, who also wanted to point out that she was among the potential nominees recommended by the advisory council.

Along with Lagareta, the holdover regents include Byron Bender, Michael Dahilig, Ramon de la Pena, Marlene Hapai and Jane Tatibouet.