Newspaper Sues Hawaii Governor for|List of State Supreme Court Candidates

     HONOLULU (CN) – The Honolulu Star-Advertiser sued Gov. Neil Abercrombie, demanding the list of nominees he got from the state’s Judicial Selection Commission, from which he selected and appointed Associate Supreme Court Justice Sabrina McKenna.



     Abercrombie appointed McKenna on Jan. 25 to fill a vacancy left by the elevation of Mark Recktenwald to chief justice.
     Star-Advertiser reporter Ken Kobayashi requested the list of nominees five days before McKenna was appointed. Abercrombie’s Press Secretary Donalyn Dela Cruz responded that day: “Hi Ken. The Governor will not be releasing the list. Will get you his choice when it is ready,” according to the complaint.
     When Kobayashi asked why, Dela Cruz replied, “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.”
     Kobayashi persevered, and nine days after McKenna’s appointment had been announced the state’s Office of Information Practices wrote him” that the list of nominees may be withheld until the Senate confirms appointment of the nominee selected by the appointing authority. More specifically, OIP found that the list could be withheld under the frustration exception set forth in HRS 92F-13(3), 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.”
     When the state Senate confirmed McKenna on Feb. 16, Kobayashi asked for the list again. This time the governor denied the request “in its entirety.” Abercrombie also dismissed and replaced OIP’s acting director.
     The OIP told the Star-Advertiser’s managing editor that it had big a “backlog and other priorities” and “limited resources,” so it would not issue another advisory opinion on the matter.
     It claimed that “rendering another OIP advisory opinion would be futile and that court action is necessary to resolve this specific dispute.” Abercrombie said that he “he would not comply with his duty to disclose until a court ordered him to do so.”
     So the Star-Advertiser sued.
     It wants to see the list, and attorney’s fees.
     It is represented by Diane Hastert with Damon Key Leong Kupchak Hastert.

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