BY JIM DOOLEY
Gov. Neil Abercrombie will not release the names of attorneys nominated to fill the latest state Supreme Court vacancy, despite an opinion from the state’s top open records lawyer that the list must be made public.
The dispute could end in a court showdown pitting Abercrombie, who took office promising a new era of government openness and transparency, against open records advocates.
In addition to refusing to release the names of judicial nominees – a reversal of the policy followed by Govs. Linda Lingle and Ben Cayetano – Abercrombie to date has failed to produce the names of donors to his inaugural ball festivities in December although he promised December 9 that the names would be made public.
Abercrombie spokeswoman Donalyn Dela Cruz said today that the Attorney General’s office disputes an opinion from Cathy Takase, acting director of the state Office of Information Practices, which held last week that the governor must disclose the names of judicial nominees once Associate Justice Sabrina McKenna is confirmed by the state Senate this week.
Abercrombie selected McKenna last month from a list of qualified applicants submitted to him by the state Judicial Selection Commission.
Lingle and Cayetano revealed the names of Judicial Selection Commission nominees before making judicial appointments, inviting public comment on the prospective jurists.
Abercrombie has maintained that public disclosure of the names discourages qualified candidates from seeking appointment.
“The Governor believes getting the names out is detrimental to attracting prospective judicial applicants,” Dela Cruz said.
“His approach in making judicial appointments is to ensure the confidentiality of these applicants,” Dela Cruz said.
As for Takase’s statement that the governor must eventually release the names, Dela Cruz said today, “We believe she is wrong.”
“We’ve been trying to call her about it but haven’t been able to reach her,” Dela Cruz said.
Reached by telephone today, Takase said she has been “playing phone tag” with the administration on the issue.
She said her position on releasing the names is based on a 2003 formal opinion by the Office of Information Practices concerning the confidentiality of judicial nominees.
That opinion said the Judicial Selection Commission could not disclose the identities of nominees, but that the governor was not bound by the same rule of confidentiality.
The 2003 opinion said, “There is a strong public interest in the disclosure of the (Judicial Selection Commission’s) nominees’ identities.”
“Once a list of nominees is received by the Governor or the Chief Justice, there is a compelling public interest in knowing who has been nominated to fill judicial vacancies and in knowing how the appointing authority reached his or her decision in selecting a judge from the list,” the opinion continued.
“Disclosure of the list of nominees would ensure the openness of the judicial appointment process and would permit the public to scrutinize the Governor’s and the Chief Justice’s appointment power,” said the opinion, written by then-OIP director Les Kondo.
The opinion was based in part on a 1993 state Supreme Court ruling which held that the governor had discretionary authoritity to release the names of judicial nominees.
In that case, the high court held that disclosure of the names of qualified applicants would not unfairly stigmatize those that were not ultimately selected.
“In our view, no stigma would attach to any judicial nominee not eventually appointed to office inasmuch as all nominees are by definition deemed by the Judicial Selection Commission to be qualified for appointment,” the Supreme Court ruled.
That 1993 opinion was written by then-Associate Justice Steven Levinson, father of Josh Levinson, chief of communications in Abercrombie’s administration.
Takase first told the Honolulu Star Advertiser last week that she felt Abercrombie must reveal the names after McKenna is confirmed by the Senate as a new Supreme Court associate justice. She reiterated that position again today.
Takase has been serving as the acting director of OIP since the previous director stepped down last year.
The governor selects the OIP director and Takase was asked today if she felt her position on the disclosure matter could adversely affect her chances of being named OIP director.
She laughed politely but did not answer.
The state’s open records law allows individuals who are denied access to government records to appeal the denial to Circuit Court.
If such an appeal is upheld, the government must pay legal expenses of the appellant.
The mechanism could be triggered if a member of the public asks for, and is denied, the list of names considered by Abercrombie before he selected McKenna last month. Under the provisions of the OIP rulings cited by Takase, such a request can only be made after McKenna is confirmed by the state Senate.
The list of Abercrombie supporters who bought tickets to the Governor’s Inaugural Ball in December is not a government record since the event was staged by a private, non-profit group called Hawaii Inaugural 2010.
But Abercrombie said on the day of the event that he would release the names of the ball benefactors.
He cited his commitment to transparency in ordering the disclosure.
But efforts since then to obtain the financial information have not been successful.
Dela Cruz last month referred questions to Jim McCoy, an Abercrombie election campaign official who is not part of the administration.
McCoy repeatedly said he could not obtain the financial information because ball organizers told him they first wanted to pay expenses and donate surplus funds to charities before releasing the names of donors
Told that HawaiiReporter would accept just an accounting of donations received by Hawaii Inaugural 2010, McCoy said he would attempt to supply that information.
This week he said he had been told to refer further inquiries about the matter to Dela Cruz in the governor’s office.
Dela Cruz said today she is attempting to gather the requested information.