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State argues law backs nondisclosure of judge candidates

By Star-Advertiser staff

LAST UPDATED: 12:21 p.m. HST, Sep 13, 2011

The Abercrombie administration says the state constitution, Hawaii law and rules of the Judicial Selection Commission support confidentiality of the names of the candidates the governor considered in appointing state judges.

The governor’s position is stated in a 17-page legal response, filed Monday in Circuit Court, to an Aug. 23 lawsuit by the Honolulu Star-Advertiser against Gov. Neil Abercrombie and state agencies.

The newspaper’s lawsuit seeks the disclosure of the names of people Abercrombie has considered for state judgeships.

Abercrombie has refused to disclose the names of four to six candidates on the list submitted to him by the state Judicial Selection Commission when he appointed Sabrina McKenna to the Hawaii Supreme Court this year.

His refusal, the Circuit Court lawsuit said, violates the state Uniform Information Practices Act, which mandates that government records be open to the public.

In the administration’s response, state Attorney General David Louie said:

>> The Hawaii constitution provides that “deliberations of the [JSC] shall be confidential,” referring to the Judicial Selection Commission.

>> The commission’s Rule 5, which has the force of law, says its proceedings “must be confidential [and therefore] all commission records, proceedings, and business, including names of all proposed nominees … shall be confidential.”

>> Hawaii law “restricts access to government records when ‘by their nature [they] must be confidential for the government to avoid the frustration of a legitimate governmental interest.’”

>> The Uniform Information Practices Act provides that "All government records are open to public inspection unless access is restricted or closed by state law."

The state’s response also cited a 1993 Hawaii Supreme Court decision, Pray v. Judicial Selection Commission, in which the court said, “we also hold that it is within the sole discretion of the appointing authorities [i.e., the Governor and the Chief Justice] whether to make public disclosure of the JSC’s lists of judicial nominees.”

The state’s response notes that on Jan. 21, an email response from the governor’s office to the Star-Advertiser stated, “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 rejects the argument that "'any justification for withholding "would end once a nominee is confirmed by the Senate,"'" the state's response says.

The state’s response asks the court to dismiss the Star-Advertiser lawsuit.

The controversy over the release was triggered Jan. 20 when the governor disclosed to the Star-Advertiser he would not be releasing the names of the candidates to the high court. Under the state Constitution, the governor must appoint justices to the high court and judges to the appeals and circuit courts from a list of four to six names from the Judicial Selection Commission for each vacancy.

His decision was a departure from the practice of his predecessor former Gov. Linda Lingle, who released the names from the commission and sought public input before she made appointments.

It was the practice of Lingle’s predecessor, former Gov. Ben Cayetano, to release the names after he chose a nominee.

State's response to Star-Advertiser lawsuit

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