Panel forms to debate release of judicial list

A committee has been set up to address issues in the ongoing controversy over Gov. Neil Abercrombie’s refusal to disclose the names of the finalists for judiciary vacancies.

The Hawaii chapter of the American Judicature Society has named 15 judges, lawyers and members of the public to consider whether the names should be released, and if so, at what point in the appointment process.

The Honolulu Star-Advertiser sued Abercrombie last month, seeking the release of the names of the judicial candidates under the state open records law.

Attorney General David Louie, one of the committee members, has raised concerns in a letter to the committee about whether the AJS should be involved in a matter now in litigation.

But retired state Judge James Burns, chairman of AJS Hawaii chapter, said the court is faced with the issue of what is the law.

The committee will deal with a separate question of what the law should require, he said.

"I don’t see how an individual’s opinion or a group of individuals’ opinion or a committee of the AJS could influence the court," Burns said.

The committee will have its first meeting Sept. 14. The panel’s meetings, Burns said, will be private.

Louie and Diane Hastert, the Star-Advertiser’s lawyer, both declined to comment.

The AJS, a nonpartisan organization that works to protect the integrity of the justice system, focuses on various topics, including the selection of judges.

Under Hawaii’s selection system, established by a 1978 constitutional amendment, the Judicial Selection Commission submits the names of four to six candidates to the governor to select Circuit Court, appeals court and Hawaii Supreme Court judges.

The nine-member commission submits at least six names to the chief justice for District Court judges.

The amendment mandates that the commission’s deliberations be kept "confidential." The commission adopted rules extending the confidentiality to the names of the judicial candidates.

The controversy started when Abercrombie disclosed in January he wasn’t going to release the names of finalists for a vacancy on the Hawaii Supreme Court.

He selected Sabrina McKenna but refused to release the names even after her appointment was confirmed by the state Senate.

Abercrombie has maintained that the release would have a "chilling effect" that would deter lawyers from applying.

The governor’s decision departed from the practice of his predecessor, Linda Lingle; former Chief Justice Ronald Moon; and current Chief Justice Mark Recktenwald, who released the names and sought public input before they made their appointments.

The Star-Advertiser’s lawsuit cites Hawaii’s open records law in asking that Abercrombie be ordered to release the other names on the list from which he picked McKenna.

Another AJS special committee here recommended in 2005 that the governor and chief justice release the names once they receive the candidate lists from the selection commission.

It noted that Lingle and Moon were voluntarily making the names public and recommended the disclosure be mandatory to "increase transparency and the ability of knowledgeable people to provide input."

Burns said Thursday the focus of the 2005 committee involved other issues surrounding the Hawaii State Bar Association’s role in the selection process and a perception of gender bias in retaining judges for succeeding terms.

The current committee would directly deal with the release of the names.

"It’s a hot issue at the moment," he said.

Burns, former chief judge for the Intermediate Court of Appeals, indicated in May in a letter to the Office of Information Practices that he disagrees that the governor should release the names.

He also wrote that the question of disclosing names should be addressed by the selection commission.

Burns said Thursday his position on the issue is unrelated to setting up the current committee.

"We don’t tell the committee what to do," he said.

Burns said he and Honolulu attorney Larry Okinaga, former head of the AJS chapter here and the AJS nationally, chose the committee members.

"We tried to get as good a range of people as we possibly could without trying to pack it," he said.

In addition to Louie, whose office will be defending the lawsuit against the governor, the committee includes Daniel Case, a Honolulu lawyer who wrote an opinion article defending the governor’s decision to keep the names confidential.

Other committee members are Moon and Lingle’s attorney general, Mark Bennett, who both served on the 2005 committee that recommended disclosure.

The committee’s charter outlines some of the issues in the current controversy, such as whether and when the names should be released and whether the selection commission should be disclosing the names.

"Hopefully, the committee will be able to recommend a course of action that will assist policy and decision makers as they address the issues regarding disclosure that they are faced with," the charter said.

Susan Ichinose, chairwoman of the selection commission, said the panel has "looked at the work of the AJS in the past and we always consider it."

Burns said it will be up to the committee to determine how to proceed and when it will be able to issue a report.