Court: Abercrombie Secrecy Illegal

article top
Hawaii Gov. Neil Abercrombie

BY JIM DOOLEY – Governor Neil Abercrombie’s refusal to disclose the names of judicial nominees violates of the state’s open records law, a state judge ruled today.

Circuit Judge Karl Sakamoto issued the ruling in a lawsuit filed by the Honolulu Star Advertiser newspaper after Abercrombie said he would not reveal the names of judicial nominees submitted to him by the state Judicial Selection Commission.


Abercrombie’s decision was a departure from practices followed by Govs. Linda Lingle and Benjamin Cayetano.

Lingle disclosed the names of nominees before she made appointments to fill state Circuit and Appellate Court vacancies.

Cayetano revealed the names of candidates after making his selections.

Sakamoto ruled that Abercrombie presented no evidence to support his assertion that revealing the names of nominees would discourage potential candidates from applying to fill judicial vacancies, the newspaper reported today.

Star Advertiser editor and vice president Frank Bridgewater said, “The public is entitled to information of this sort and we are pleased that Judge Sakamoto has agreed. The more informed the public is, and the more open government is, the better.”

Sakamoto made an oral ruling in the case and Bridgewater said he did not know when the judge would issue a formal written ruling. “We asked for an expedited transcript of the judge’s ruling,” Bridgewater said.

Attorney General David Louie’s office, which argued the case for the governor, said it will review Sakamoto’s written ruling before deciding whether to appeal.

“Obviously, we are disappointed with Circuit Court’s oral ruling today,” said Louie in a written statement.

“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,” Louie said.

Abercrombie’s decision to keep the names confidential was revealed shortly after he took office and selected then-Circuit Judge Sabrina McKenna in January to fill a vacancy on the Hawaii Supreme Court.

Cathy Takase, then the acting head of the state Office of Information Practices, said state law required the governor to publicly identify the candidates he considered before selecting McKenna.

Takase, who was moved out of the Office of Information Practices shortly after making that statement, said her position was based on a 2003 formal opinion by the OIP 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.