HONOLULU (CN) – A judge has ordered Hawaii Gov. Neil Abercrombie to disclose the names of candidates who had vied for a spot on the state’s high court, saying he was confounded as to why to Abercrombie fought the request.
Abercrombie appointed Associate Supreme Court Justice Sabrina McKenna on Jan. 25 to fill a vacancy on the bench left by the elevation of Mark Recktenwald to chief justice.
Five days earlier, Star-Advertiser reporter Ken Kobayashi had asked the governor’s office to release the nominees proposed by the state’s Judicial Selection Commission. Press Secretary Donalyn Dela Cruz refused, telling Kobayashi in an email: “The governor believes getting the names out is detrimental to attracting prospective judicial applicants. His approach in making judicial appointments is to ensure the confidentiality of these applicants.”
Abercrombie said he “would not comply with his duty to disclose until a court ordered him to do so,” according to the Star-Advertiser.
The Office of Information Practices defended Abercrombie’s decision, finding that materials were exempt because of “the potential for injection of undue influence in or politicizing of a selection process carefully established by the Constitution. […] The frustration upon which that opinion is based would end once a nominee is confirmed by the Senate. Until that point, the same basis for frustration would exist because, if the Senate chose not to confirm a nominee appointed by the Governor, another nominee would then be selected from the list.”
Citing a “backlog and other priorities” and “limited resources,” an OIP official told the Star-Advertiser’s managing editor in June that it could not render more than an opinion letter on the matter.
Oahu Publications, which publishes the Star-Advertiser, filed suit in August.
After a hearing this week, Oahu First Circuit Judge Karl Sakamoto granted summary judgment in a bench order for the Star-Advertiser.
“Having carefully reviewed the moving papers and the applicable law, the court […] finds public interest outweighs personal privacy,” Sakamoto said according to a transcript of the Monday hearing.
The ruling also forces future governors to disclose the names of judicial nominees.
At the hearing Monday, Star-Advertiser attorney Robert Thomas disputed Abercrombie’s claim that disclosure would “frustrate” the judicial-appointment process. “The only concern really [is] that the founders or drafters of the 1978 constitutional amendments that added this whole process was with keeping the JSC isolated from political concerns,” he said, according to a court transcript. “And it was assumed that JSC lists would become public at some point after their transmission to either the governor or chief justice.”
Even if lawyers who applied for judicial seats sought confidentiality, “the governor’s theory really cuts against the strong public policy of disclosure and transparent government,” on which the Uniform Information Practices Act is very clear, Thomas said.
It would be one thing “if the JSC list included everybody’s resume and background check, for instance,” Thomas said. “But here, it’s literally just limited to their name, and the name alone is not significant.”
Sakamoto noted that the U.S. Supreme Court found no constitutional obligation either way about compelling such disclosure. Nevertheless, Abercrombie failed to argue any significant privacy interests in the mere release of nominee names, according to the court.
“Defendant has not adequately shown how disclosure of the list will frustrate proceedings of the JSC […] [or] show that such a chilling effect in actuality exists […] provided any affadavits or declarations of potential applicants testifying that the disclosure of the judicial nominee list had any effect on their decision to apply for a judicial vacancy,” Sakamoto said, according to the transcript.
Deputy Attorney General Aina said she and Abercrombie may appeal the ruling, while the newspaper will likely seek attorneys’ fees as the prevailing party.
The Judicial Selection Committee in Hawaii reportedly amended its own rules this week based on the Nov 14 ruling. The new mandate requires that, moving forward, the public release can see the judicial nominees’ names at the same time they are transmitted to the governor.