POSTED: 1:30 a.m. HST, May 5, 2011
A state lawyer has laid out for the first time Gov. Neil Abercrombie's legal arguments for refusing to disclose the names of judicial candidates, saying the governor cannot be required to do so unless ordered to by a state judge.
Abercrombie "firmly believes" that the disclosure would be detrimental to attracting judicial candidates, Deputy Attorney General Charleen Aina wrote this week in a letter to the Office of Information Practices.
The governor believes disclosure would reduce the number and range of experience of the applicants, Aina wrote.
The office is reviewing the governor's refusal to disclose the names of the judicial candidates sent to him by the Judicial Selection Commission, and is considering an appeal by the Honolulu Star-Advertiser and online news service Civil Beat.
Abercrombie chose Sabrina McKenna from the commission's list for a vacancy on the Hawaii Supreme Court, but has refused to disclose the names of the other candidates.
Aina said in the letter sent Tuesday that the disclosure would "frustrate the judicial nomination and appointment process." She also said the state open records law permits the governor to keep the names of judicial candidates confidential.
Cathy Takase, the office's former acting director, wrote to the Star-Advertiser in February that the governor would have to disclose the names once the nomination was confirmed by the state Senate.
Takase relied on a 2003 OIP opinion, but Aina said the opinion did not have a "factual or legal basis for its conclusion that attorneys will not be deterred from applying for judicial offices if the (commission's) lists of nominees were disclosed."
Abercrombie's refusal is a departure from the practices of his predecessor, Linda Lingle, who disclosed the names and sought public comment before she made her appointments.
Aina wrote that a "dispositive determination" on whether disclosure would deter potential applicants can't be made without knowing the number of applicants for vacancies, but the commission turned down a request for those numbers.
The commission screens applicants and sends lists of four to six "qualified" candidates to the governor.
Aina wrote, though, that only five attorneys in private practice were on the lists of candidates made public by Lingle for two vacancies on the Hawaii Supreme Court and three on the Intermediate Court of Appeals.
The Circuit Court lists also indicated that the pool of applicants was small because the same individuals appeared on multiple lists and the candidates were not representative of the Hawaii bar because most were already judges or government attorneys, she wrote.
Office of Information Practices Director Cheryl Kakazu Park, who was appointed by Abercrombie, said the office is reviewing Aina's letter and cannot immediately say when the office will issue an opinion on the governor's refusal.
But Aina said that until a court determines that "the governor is mistaken" about the rationale for his refusal, Abercrombie cannot be required to disclose the names.