BY JIM DOOLEY – In another rejection of Gov. Neil Abercrombie’s position on the secrecy of judicial nominations, the state Judicial Selection Commission has decided to make public the names of all candidates for judicial appointment submitted to the governor and the Hawaii Supreme Court chief justice.
Since taking office in December, the governor has refused to release the names of candidates he has received from the Judicial Selection Commission when making appointments to the Hawaii Supreme and Circuit Courts.
Under the state constitution, the commission screens applicants for judicial appointments and submits lists of qualified candidates to the governor and chief justice for final selection.
Previous governors have released the lists received from the JSC either before or after appointments were made. But Abercrombie has refused to disclose the names at all, arguing that publicity about the individuals would discourage qualified candidates from applying to be judges.
This week the Honolulu Star Advertiser prevailed in a lawsuit challenging Abercrombie’s secrecy policy. The governor and Attorney General David Louie are deciding now whether or not to appeal that ruling, issued by Circuit Judge Karl Sakamoto.
Now the Judicial Selection Commission has essentially mooted that legal dispute by announcing that it will release the names as soon as they are submitted to “the appointing authority.”
In a news release, JSC Press Release,the commission said it “believes that the judicial selection process will be strengthened by the new rules because the work product of the JSC will now be more easily accessible and more readily evaluated by the public.”
Commission chairwoman Susan Ichinose said the timing of the decision was unrelated to the lawsuit or Judge Sakamoto’s ruling.
“The timing was unfortunate,” she said. But the decision to release the names had been under study for six months and the November 15 final vote on the matter was scheduled “months ago,” said Ichinose.
Before the lawsuit was ever filed, the commission would have “liked to tell the court or the governor, ‘ Hey, you know, just wait, we’re looking at this and it may be moot,’” but it could not because of its own rules of confidentiality, said Ichinose.
Those rules have now been loosened by the commission.
“We are interested in greater transparency,” said Ichinose.
”We studied this matter seriously for six months,” she added.
The state constitution still requires that all of the commission’s deliberations be kept secret, and the new rules adhere to that mandate but let in more light on the commission’s work, she said.
Attorney General David Louie said on November 18: “We recognize the right of the Judicial Selection Commission to change its rules and decide upon its own authority whether to publicize the names on the list. But this does not change the holding in thePray vs. Judicial Selection Commission case that provided the Governor with discretion to release the names, contrary to Judge Sakamoto’s ruling against the State in the recent case filed by the Star-Advertiser. Until we have had the opportunity to review and evaluate the written decision issued by Judge Sakamoto, no decision has been made on whether we will pursue further legal review in the Star-Advertiser’s case.
“With respect to releasing the names of future nominees, if the Commission publicizes the names of final judicial candidates when they provide those names to the Governor, the practical effect moving forward is that the names are available to the public regardless of who releases them. This does not necessarily mean, however, that an appeal will not be taken in the present case, which was decided prior to the Judicial Selection Commission’s rule change.”
The amendment to the Judicial Selection Commission rules became effective on November 15, 2011, and can be found on its website at: https://www.courts.state.hi.us/courts/judicial_selection_commission.html