Gov. Neil Abercrombie maintained that disclosing the names of judicial candidates would hamper attracting applicants to the bench, his office said in response to a Honolulu Star-Advertiser lawsuit filed Tuesday.
The newspaper is seeking the release of the names of the candidates the governor considered in appointing state judges.
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.
The governor has maintained that the names fall under an exemption to the law because the release would have a "chilling effect" on potential applicants.
Abercrombie’s spokeswoman, Donalyn Dela Cruz, said Tuesday evening, "The governor firmly believes that public disclosure is detrimental to attracting potential judicial applicants. His approach in making judicial appointments is to ensure the confidentiality of the applicants."
The suit argues the governor’s reasoning does not support keeping the names confidential.
"The Star-Advertiser brings this action to compel Governor Abercrombie to honor Hawaii’s strong public policy of open, transparent and accountable government and publicly disclose the list of nominees presented to him in January 2011 by the Judicial Selection Commission from which he appointed Associate Justice Sabrina McKenna," the lawsuit said.
Star-Advertiser Publisher Dennis Francis said the newspaper "held off on taking on this action in hopes that the governor might rethink his position, but it has become apparent he will not."
"It appears that only a court order will provide the transparency that we believe the public deserves."
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.
Susan Ichinose, chairwoman of the Judicial Selection Commission, said she had not seen the lawsuit and declined to comment.
Some in the legal community support the governor’s stance, including retired Circuit Judge Eden Elizabeth Hifo and Honolulu lawyer Daniel Case.
But open-government advocates, such as Common Cause Hawaii and the League of Women Voters of Hawaii, said the governor should disclose the names. "It is very unfortunate when the media or other parties feel it necessary to bring legal action against an administration to compel compliance with the law," league President Beppie Shapiro said.
The suit details the Star-Advertiser’s efforts in asking the governor for the names and in asking the Office of Information Practices for assistance.
On Feb. 3 Cathy Takase, then the OIP acting director, wrote in response to a query by the Star-Advertiser that the "frustration exception" to the state law requiring disclosure ends once a judicial appointment is approved by the Senate.
The governor still refused to release the names when McKenna’s appointment was approved by senators on Feb. 16.
The newspaper asked OIP to help in getting the names, but Cheryl Kakazu Park, who was appointed by the governor to replace Takase, replied in a letter to the newspaper and the online news organization Civil Beat on May 13 that the office would not be issuing an advisory opinion.
Park wrote that because the governor’s position was that he would not release the names until directed by the state court, another OIP advisory opinion would be "futile."
The Star-Advertiser asked Park to reconsider. She turned down the request on June 9.
Star-Advertiser Editor Frank Bridgewater said the governor has not offered a "credible" reason for keeping the names confidential.
"We think releasing the names after Senate confirmation, as called for by the Office of Information Practices, would be a wise and fair way to handle the situation.
"It would give the public the information it needs to evaluate the governor’s choice and the list provided by the Judicial Selection Commission."
The lawsuit said, "After the new OIP Director washed the OIP’s hands of responsibility" and said court action would be necessary to resolve the dispute, the newspaper was "left with no alternative but to institute this action."
Abercrombie, who took office in December, has appointed two other judges since his first appointment of McKenna to the high court.
The governor appointed Rhonda Loo, who has been approved by the Senate and is now a Maui circuit judge.
Abercrombie’s appointment of Karen Nakasone this month to the Oahu Circuit Court bench is awaiting Senate action.
The governor will be making other judicial appointments, most notably selecting two other associate justices to the five-member Supreme Court because of the mandatory retirement law at age 70 for state judges.
During the governor’s four-year term, Associate Justice James Duffy turns 70 in June next year, and Associate Justice Simeon Acoba will be 70 in 2014.
The lawsuit also asks for a judgment declaring that "a governor must disclose the list of judicial nominees" after the Senate confirms a judicial appointment.
The lawsuit does not ask for any monetary damages for the Star-Advertiser, but asks for attorney fees and costs, which could be tens of thousands of dollars depending on the scope and length of the litigation.
"The governor’s burden of proof in this case is nearly insurmountable," Diane Hastert, Star-Advertiser attorney, said. "He must prove with compelling evidence that releasing the list to the public somehow makes talented lawyers unwilling to apply to be judges.
"But the high quality of our state Judiciary in the last two decades easily refutes that argument, doesn’t it?"
She added:
"When the Star-Advertiser prevails, it will be entitled to recover the fees and costs it incurs in this suit.
"The governor said he would not disclose the list unless a court ordered him to do so, so ironically, the public is going to pay to see its own documents.
"In a time of tight budgets, the governor should not be wasting taxpayer money hiding the list of judicial nominees from the public, especially after the Senate consented to his appointment."
The lawsuit asks for an expedited consideration by the courts.
