A state judge ruled Monday that Gov. Neil Abercrombie must disclose the names on Judicial Selection Commission candidate lists used to make appointments.
Circuit Judge Karl Sakamoto said the governor did not provide any evidence to support his rationale that disclosure would have a "chilling effect" on potential applicants who might not want their names made public.
Sakamoto said while the theory might be "plausible," it was "speculative" and not sufficient to fall under an exemption from the state open-records law.
"The court believes (the governor) has not shown the exceptions apply in this case," Sakamoto ruled.
Abercrombie’s office referred questions to Attorney General David Louie, who issued a statement saying they were "disappointed" by the decision.
"Once we receive the court’s written order and have the opportunity to thoroughly review it and consider other relevant factors, we will decide how to respond," he said.
Sakamoto issued his ruling after hearing arguments from lawyers for Abercrombie and the Honolulu Star-Advertiser, which had filed a lawsuit seeking the release of the names.
JUDICIAL NOMINEES
Circuit Judge Karl Sakamoto ruled Monday that Gov. Neil Abercrombie must release the names of judicial finalists he receives from the state Judicial Selection Commission. A brief history:
» 1978: State constitutional amendment creates the Judicial Selection Commission to screen applicants and send names of candidates to the governor for appointment to the Hawaii Supreme Court, Intermediate Court of Appeals and Circuit Courts. The commission sends names to the chief justice for district court appointments.
» 1993: Hawaii Supreme Court rules that the commission may keep the names on the lists confidential, but says it is up to the governor and chief justice on whether to make the names public.
» 1995: In making his first judicial appointments, Gov. Ben Cayetano releases the names after he makes his first judicial appointments. The disclosure, he says, "opens the process to public scrutiny and ensures the public that their judges are being selected on the basis of qualifications, not politics."
» 2003: In making her first judicial appointments, Gov. Linda Lingle releases the names when she receives them from the commission and asks for public comment on the candidates. The move is part of "her continuing effort to maintain openness in her adminstration," her office says.
» January: In making his first judicial appointment, of Sabrina McKenna to the Hawaii Supreme Court, Gov. Neil Abercrombie refuses to release the names of other candidates he received from the commission. He says the release would have a "chilling effect" on the process and deter potential applicants who fear their names would be disclosed.
» Aug. 23: The Honolulu Star-Advertiser sues Abercrombie, seeking the release of the names under the state open-records law. State lawyers oppose the request.
» Monday: Circuit Judge Karl Sakamoto says the governor did not provide any evidence to show the disclosure would have a "chilling effect" on potential applicants.
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"The public is entitled to information of this sort, and we are pleased that Judge Sakamoto agreed," said Frank Bridgewater, Star-Advertiser vice president/editor.
"The more informed the public is, and the more open government is, the better."
"We are extremely pleased," said newspaper attorney Diane Hastert. "Judge Sakamoto thoroughly analyzed all of the complex issues in the case and concluded the public has the right to know the names of individuals on the Judicial Selection Commission lists."
Abercrombie bucked the practice of his predecessors when in January he made his first judicial appointment in selecting Sabrina McKenna for the Hawaii Supreme Court but refused to divulge the names of other candidates.
Former Govs. Ben Cayetano and Linda Lingle had made public the lists of nominees from the Judicial Selection Commission in their appointments to the Hawaii Supreme Court, the state Appeals Court and the Circuit Court.
Former Chief Justice Ronald Moon and current Chief Justice Mark Recktenwald also made the lists public when picking district judges.
Deputy Attorney General Charleen Aina defended the governor’s position that the release would be a "frustration" of the government’s interest in the appointment process.
She told Sakamoto the process includes the commission screening and recommending the names confidentially, and the disclosure by the governor would "interfere" with that process.
But attorney Robert Thomas, who also represents the newspaper, told Sakamoto the governor cannot establish that the release of the names is a factor for a lawyer considering a judgeship.
He also said disclosures by the previous governors show that the process wasn’t "frustrated."
"The governor’s theory really cuts against the strong public policy of disclosure and transparent government" in the state open-records law, Thomas said.
Sakamoto also ruled that the disclosure would not be an "unwarranted invasion of privacy" because it does not involve personal information such as a Social Security number or medical background.
In addition, he said the commission’s rule that its proceedings and its list must be confidential cannot apply to the governor or chief justice.
The judge granted the newspaper’s request for a judgment, directing the governor to disclose the names on the list of candidates used in picking McKenna and two circuit judges.
He also granted a judgment that directs the governor to release the names for future appointments. The disclosure must be made once the Senate confirms the selection, at the latest.
Abercrombie’s future appointments include replacing two members of the Hawaii Supreme Court who, by law, must retire at age 70.
Because they prevailed, the newspaper lawyers will seek attorney fees and costs from the state. They estimated it could be in the tens of thousands of dollars.
Aina acknowledged that the law permits recovery of fees and costs, but said it must be "reasonable."
Of the ruling, Aina said, Sakamoto "definitely gave great thought to it."
"It was very detailed, and while it’s not what we believed the conclusion should have been, it’s clear he looked at all of the exceptions the governor relied upon to withhold the list (of names)."
Abercrombie isn’t legally obligated to release the names until Sakamoto files his formal written order, which is being prepared.
At that time the state has the option of filing an appeal and asking that the names remain secret pending a ruling by a higher court on the state’s challenge.
