On Dec. 4, the State Supreme Court had argument in Hanabusa v. Lingle, the University of Hawai'i Regents case. The same day, the court decided that Gov. Linda Lingle had contravened the law and it ordered her to appoint six more regents by Jan. 3.

This decision is the right result, not only for the university but for its beneficiary, the tech industry. The rule of law lives in Hawai'i, but it's a shame that we had to have the struggle of intra-governmental litigation to get there.

LINGLE V. LEGISLATURE

Lingle has been battling with the legislature about control of the university for years. Former UH President Evan Dobelle made an 11th-hour endorsement of Mazie Hirono in the 2002 election. This did not endear him to Lingle, and that's what started the trouble. After taking office, she had a clear channel on appointments to the board of regents and it wasn't long before her appointees got rid of him.

Lingle kept on making what some said were openly political appointments to the board. The legislature was concerned, and in 2005 they passed a bill calling for a constitutional amendment to depoliticize the process. The amendment called for an advisory council that would present a slate from which the governor had to appoint the regents. This was said to be in the spirit of greater autonomy for the university, as contemplated in the UH amendment that passed in 2000, and as recommended by the Association of American Governors.

The new amendment got on the ballot in 2006. Lingle, her longtime supporter and regent Kitty Lagareta and UH President David McClain opposed it, but the voters adopted it by a wide margin — 57 percent. In 2007, the legislature introduced a bill to implement the amendment. Lingle and her supporters opposed that, too. When it passed, she vetoed it. The legislature overrode that veto, and Act 56 became law.

In July 2008, the terms of 12 of the 15 regents were expiring. To fill those 12 vacancies, the newly created advisory council presented a slate of 23 candidates. Lingle appointed seven of them, including Lagareta. The senate confirmed six of these appointees, but failed to confirm Lagareta. Lingle then stopped making appointments, even after requests by Norman Sakamoto, and the 2008 session ended with six seats vacant.

Then came creativity. Lingle designated six "holdover" regents, notably including Lagareta, leaving the board with nine regents and the handicap of these holdovers, and had the attorney general issue an opinion that that was legal. In one fell swoop, the governor had neutralized the amendment, the act, the advisory council and the senate, and put things into indefinite stalemate, possibly until the end of her term.

DAMAGE TO UH

The months passed, and despite repeated objections by Colleen Hanabusa, the board, chaired by regent Al Landon, conducted its business with the six holdovers participating. Many at the University (including Jon Van Dyke, the UH law professor who argued the case for the senate pro bono) were concerned that the board's acts during that period are "under a cloud" and at risk of invalidation, a troublesome prospect.

This was more than a legal matter — it was openly divisive. David McClain had testified against Act 56, something you would never expect from him as president. McClain is leaving as president in July 2009, and his departure makes this more complicated because of the need for the regents to conduct a search to replace him. They are way behind the curve and have only just now appointed an "advisory" committee to initiate that search. It is unlikely he will be replaced in time.

Chair Al Landon, who has sided with Lingle in this matter, has appointed Lagareta to the search committee, even though she's one of the holdovers. Should she remain on that committee after the new regents are appointed, or should one of the new regents be on that committee instead?

POLITICS OR PERSONAL

Lingle came into office with the privilege to select the regents herself, subject only to senate confirmation. The amendment limited that power. She undoubtedly felt it was the Democrats trying to box her in, and that she needed to stand firm. She characterized their efforts as political partisanship.

But was that really the case? Many who wanted to reform the system wanted to depoliticize the selection of the regents, and thus the selection of the president and the management of the university, and felt that this could be best achieved with an independent advisory council. Lingle could have done this by executive order, but she preferred to stave them off and take her chances.

When asked, the public agreed with the reformers. Their vote was thoughtful and discerning — in the very same election they also re-elected Lingle by a wide margin, and they allowed her to transform the Supreme Court by refusing to extend the 70-year retirement age for Supreme Court Justice Ronald Moon.

The amendment should have ended the debate, but Lingle kept on fighting, even to last Thursday. She was determined to the end to retain control over the regents. Was that political or just personal? Were McClain and the others who supported her doing so on the basis of a political principle or purpose, or was it on the basis of personal loyalty or obligation?

THE COURT WAS RIGHT

In his argument, Van Dyke said the governor was manipulating the process for her favored regents. In her "new beginning," she was going to clean up government and make us more confident of the system. Are we now more confident?

The gallery was full last week, but there were other unseen spectators in the wings — faculty, deans, administrators, scientists, engineers, researchers, entrepreneurs, alumni and students. They might have been wondering what the attorney general could offer to justify or excuse what had happened.

They might have been thinking about the way appointments are made in our state, the rule of law and the separation of powers, when this kind of contention will arise again and what can be done to prevent it. They might also have been thinking about why a public official would intentionally ignore a constitutional mandate.

To build our university, and develop a global tech industry in Hawai'i, we need UH management to be beyond reproach. We need our university to be well fed, well led, fully autonomous and in a healthy equilibrium with all branches of government.

This court decision was spot on. Good for Sens. Colleen Hanabusa and Norman Sakamoto. Kudos to the Supreme Court. We await the full opinion now to follow.

Jay Fidell is a business lawyer practicing in Honolulu. He has followed tech and tech policy closely and is a founder of ThinkTech Hawaii. Check out his blog at www.HonoluluAdvertiser.com/Blogs