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Governor explains secrecy over judge candidates

By Ken Kobayashi

POSTED:
LAST UPDATED: 04:54 p.m. HST, May 04, 2011



Gov. Neil Abercrombie has submitted to the Office of Information Practices the legal reasoning for his refusal to disclose the names of judicial candidates.

Abercrombie “firmly believes” that the disclosure would be detrimental to attracting judicial candidates, and that keeping names confidential is “critical to assuring that both he and the (Judicial Selection Commission) receive applications for the most willing and capable individuals otherwise qualified to serve as our judges,” Deputy Attorney General Charleen Aina wrote in a letter.

The document was submitted yesterday to the office, which administers the state open records law.

The office is considering an appeal by the Honolulu Star-Advertiser and Michael Levine of Civil Beat, an online news organization, of the governor’s refusal to disclose the names of the judicial candidates sent to him by the Judicial Selection Commission for a vacancy on the Hawaii Supreme Court.

Abercrombie chose Sabrina McKenna from the list, but has refused to disclose the names of the other candidates submitted by the commission.

Aina said the disclosure would “frustrate the judicial nomination and appointment process” as outlined in the state constitution. 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 saying that the governor would have to disclose the names once the governor’s choice is confirmed by the state Senate. Abercrombie  refused to disclose the names even though McKenna has been confirmed by the Senate.

Takase relied on a 2003 opinion by the office, but Aina wrote 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.”

Aina said until a court determines that “the governor is mistaken in his understanding that the JSC’s lists are confidential and more importantly that disclosure will not frustrate the JSC’s and his responsibility to nominate and appoint the justices and judges of the state’s courts, the governor cannot be required to disclose the contents of the JSC’s lists” as requested by the Star-Advertiser and the Civil Beat.

Cheryl Kakazu Park, Office of Information Practices director who was appointed by Abercrombie, said the office is still reviewing the governor’s papers and cannot immediately say when the office will rule on the appeal.

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 appointment.

Chief Justice Mark Recktenwald is following the practice of his predecessor Ronald Moon and is disclosing the names and seeking public input before appointing state district judges.

Response to Star-Advertiser OIP appeal






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