POSTED: 1:30 a.m. HST, Feb 4, 2011
Gov. Neil Abercrombie must release the names of the other candidates for a position on the Hawaii Supreme Court once his nomination of Sabrina McKenna as associate justice is confirmed by the state Senate, according to the state lawyers who administer the open-records law.
Abercrombie has refused to disclose the names of the other candidates to the high court sent to him by the Judicial Selection Commission.
But the Office of Information Practices responded yesterday by letter to a query by the Star-Advertiser and said the reasons for confidentiality would end once his nominee is confirmed.
Cathy Takase, OIP's acting director, later said once McKenna is confirmed, the governor "must release the names under the law."
Donalyn Dela Cruz, Abercrombie's spokeswoman, said he received a copy of the letter, and "we will review the letter and determine our next course of action."
Abercrombie's nomination of McKenna, Family Court circuit judge, to the five-member high court is scheduled to be heard today by the Senate Judiciary and Labor Committee. The Senate would vote on the appointment after the committee makes a recommendation.
Abercrombie's office said last month he would not disclose the names because the governor believed the release would be "detrimental to attracting prospective judicial applications."
When the governor later announced his first judicial appointment with his nomination of McKenna, he said he wanted to "maximize the pool of talent" and needed to keep confidential the names of the applicants.
Abercrombie's predecessor, Linda Lingle, released the names once she got them from the commission and sought public comment on the candidates before she made her appointment.
Abercrombie's position drew criticism from open-government advocates who contend the names should be disclosed to help the public evaluate the judicial selection process and the decisions by the commission and the governor.
But supporters of his position say the disclosure deters applicants from applying for judgeships, particularly private attorneys who might not want clients to know they are seeking another job.
The Hawaii Supreme Court ruled in 1993 that the decision to release the names is in the "sole discretion" of the governor and chief justice, who appoint judges. In 2003 the OIP issued an opinion saying the governor and chief justice are not obligated under the open-records law to disclose the names prior to Senate approval.
It said the judicial appointment process might be "frustrated" by "undue political influence" if the names are disclosed earlier.
The Star-Advertiser asked last week whether once the Senate approves the nomination, the governor would have to disclose the names.
"The frustration upon which that (2003) opinion is based would end once a nominee is confirmed by the Senate," Takase said in the letter.
"I don't see that any exception (under the law to disclosure) would apply," she later said.
Former Chief Justice Ronald Moon also released the names prior to appointing judges to district court. Chief Justice Mark Recktenwald has indicated he will follow the same practice, according to a Judiciary spokesman.