Robert Thomas
Robert Thomas

BY ROBERT THOMAS – Remember the case from late last year in which the Honolulu Star-Advertiser brought a freedom of information/open records lawsuit against the Hawaii governor to force him to disclose the names of judicial nominees? Abandoning the practice of his two predecessors, the Governor refused to release the list of names of nominees transmitted to him by the Judicial Selection Commission.

The circuit court ruled that under Hawaii’s Uniform Information Practice Act the Governor should not have kept the names secret, and that disclosure is required. [Disclosure: we represent the Star-Advertiser in that case.]

Following the ruling, three things happened. First, the Governor released the names on the lists for the vacancies on the Hawaii Supreme Court (eventually filled by Justice McKenna) and on the circuit bench. Second, the Judicial Selection Commission amended its rules to allow for the release of the lists when they are transmitted to the governor. Third, UIPA requires the award of attorneys’ fees and costs to a prevailing plaintiff, and the circuit court entered an award in favor of theStar-Advertiser, concluding that “given the novel and complex issues presented by this case, and the extensive research it entailed, the time expended by the attorneys for the Plaintiff Star-Advertiser was reasonable.”

The Governor has now appealed the latter ruling to the Intermediate Court of Appeals, arguing that the circuit court did not have enough evidence before it to make the fee award, and that the amount awarded was not reasonable. More here (“Abercrombie appeals ruling to pay fee award“). For those of you who do not subscribe, here are the key takeaways from the article:

“This appeal is a waste of time and, more importantly, of more public money,” said Diane Hastert, Star-Advertiser lawyer. “The governor said he would not release the names unless someone sued, knowing full well that if his attempt at secrecy lost, the taxpayers would have to pick up the costs of the lawsuit.“He’s now appealed, which only means more costs and more delay.”

Hastert noted that the appeal is not over Sakamoto’s ruling about the disclosure.

“He’s only claiming that the Star-Advertiser put too much effort and time into winning,” she said. “But Judge Sakamoto got it exactly right when he concluded that this was a ‘difficult’ case, and the time spent to win it was reasonable and necessary.”

Wisch said the state disagrees.

“We are appealing this unreasonable award amount specially to safeguard the public’s money,” he said.

He said the state’s position will be made clear in its court filings.

Robert Thomas, Hastert’s law partner who also represented the Star-Advertiser, said the state’s position at Circuit Court was that a reasonable fee would have been in the $30,000-to-$35,000 range, which means the amount disputed on appeal is about $35,000 to $40,000.

He said if Sakamoto’s decision is upheld, the newspaper’s position under the state open-records law is that it will be entitled to additional fees and costs for the appeal.

Thomas also said the newspaper will seek post-judgment interest at a rate to be determined later, starting from the filing of the judgment on June 29.

Dennis Francis, Star-Advertiser president and publisher, said: “With this decision to appeal the ruling ordering the state to reimburse our legal fees, the governor has backtracked again from his campaign promise of transparency and sent a message to those who might want to challenge public policy decisions. That message is: ‘You should think twice, because we have the resources — taxpayers — to drag this out and run up your legal bills for potentially years to come.

The briefs in the appeal won’t be filed for a few months, but we will post them when they are.

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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at rht@hawaiilawyer.com He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.