Hawaii Gov. Neil Abercrombie has repeatedly said he won’t release the list of nominees for judgeships because doing so would discourage potential applicants.

On Tuesday, the state’s attorneys put their rationale in writing, and said they’ll only give in if a court rules against them.

The Office of the Attorney General provided a formal response to the Office of Information Practices after Civil Beat and the Honolulu Star-Advertiser requested the Judicial Selection Commission’s short list of finalists for the vacancy on the Hawaii Supreme Court that was eventually filled by Sabrina McKenna.

The 90-page correspondence was sent to new OIP Director Cheryl Kakazu Park, who took over the office after Interim Director Cathy Takase was let go. Takase, who told Abercrombie he’d have to release the list of names, has since found a job elsewhere in state government.

“The Governor believes that disclosing the names of the JSC nominees who are not appointed would reduce the number, and limit the range of experience of those who are willing to apply and serve as justices and judges of the state’s courts,” Deputy Attorney General Charleen Aina said in the letter, which she provided to both Civil Beat and the Star-Advertiser Tuesday evening.

Aina goes on to say that Gov. Linda Lingle‘s pool of judicial applicants was so small because she disclosed the names of potential nominees. Attached to the letter are exhibits that show Lingle’s appointments as well as relevant Lingle press releases and notices of deadlines that were extended to encourage more applicants.

The letter does not mention that Lingle was the first Republican governor in 40 years and that the pool of lawyers and judges for her to select from could well be smaller than the pool for Democrats in a deep blue state.

Aina pointed out that the Hawaii Supreme Court decision that OIP has referenced in a 2003 opinion and its letter to Abercrombie this year does not explicitly require the disclosure of the applicant list even after the appointee is confirmed.

“Accordingly, until a court, with the benefit of a full evidentiary record determines that the Governor is mistaken in his understanding that the JSC’s lists are confidential, and more importantly that disclosure will not frustrate the JSC’s and his responsibility to nominate and appoint the justices and judges of the State’s courts, the Governor cannot be required to disclose the contents of the JSC’s list as Mr. Kobayashi and Levine request,” the letter concludes.

Read the full response:

Read our previous coverage:

About the Author