Today the spotlight will be on Associate Justice Mark Recktenwald as he appears before the Senate Judiciary Committee to be considered for the position of chief justice of the Hawaii Supreme Court.

His path to the office is expected to be smooth, unlike the previous nominee, Judge Katherine Leonard, who was rejected both by the committee and the full Senate. In making the nomination, Gov. Linda Lingle pointed out that Leonard would shatter the glass ceiling as the first female chief justice and would be the first justice from the William S. Richardson School of Law.

Even before Leonard appeared before the committee, the spotlight had already shifted to the Hawaii State Bar Association, whose determination that she was unqualified for the post immediately drew fire. Critics complained that the rating came with no explanation and no vote count of the association’s 20-member board.

Civil Beat responded to the controversy by holding a Beatup Thursday to explore the bar’s policies. A point was made by one of our guests: The powerful Hawaii Judicial Selection Commission, which put Leonard and Recktenwald on the short list in the first place, deserved as much scrutiny for its secrecy as the bar association.

We had already begun exploring the commission’s role and practices. Commission deliberations are required to be confidential by the Hawaii Constitution and commission rules [pdf]. And as with the bar association, the results of the vote and the rationale for the results are not made available to the public. But the commission must provide the governor a list of four to six names for each vacancy, along with biographical information.

Leonard was one of six names on an alphabetized list Lingle received from the commission on June 22. Included with that list, according to Commission Chair Sheri Sakamoto, were short bios on each of the potential nominees. Sakamoto told Civil Beat that the information — such as date of birth, work history, year law degree was obtained and year the nominee passed the bar exam — does not indicate any preference for one of the six candidates.

On Aug. 3, Civil Beat asked to review [pdf] all written correspondence between the Governor’s Office and the commission since Jan. 1 so we could determine for ourselves if the commission expressed, implicitly or explicitly, preferences for one appointee or another, particularly in the writing of the biographies.

The Governor’s Office responded last week, providing the list of names and copies of the letters she sent to the commission announcing her choices, all of which had been previously released. But she rejected the request for everything else, citing exceptions to the state’s Uniform Information Practices Act. On Tuesday, Civil Beat filed an appeal with the Office of Information Practices.

Here’s a detailed explanation of Civil Beat’s request and the governor’s response.

The governor’s first response [pdf], on Aug. 18, stated: “All other documents that fall within the scope of your request that the Governor’s Office has are confidential and cannot therefore be disclosed.” It pointed to “Haw. Rev. Stat. 92F(b)(4) and Rule 5, Sec. Twp. A., C., Judicial Selection Commission Rules.”

After it was pointed out that Section 92F(b)(4) appears not to exist, the Governor’s Office provided a subsequent response [pdf] the following day that included the same documents and same language, but instead pointed to “Haw. Rev. Stat. 92F-13(4) and 92F-14(b)(4).”

Section 92F-13(4) of the Hawaii Revised Statutes exempts records that are protected from disclosure pursuant to another state law or court decision. The pertinent law could be Rule 5, Section Two, A and C, of the Judicial Selection Commission rules, which was referenced in the first response but removed from the second. The Governor’s Office has been asked to confirm that point.

Section Two, which deals with confidentiality, reads:

A. Under the Constitution of the State of Hawaii, the commission’s proceedings must be confidential. Therefore, all commission records, proceedings, and business, including the names of all proposed nominees and the names of nominees forwarded to the appointing authority, shall be confidential and may not be discussed outside commission meetings, except among commission members, or as made necessary by Rule 9 or Rule 12, or pursuant to Rule 13.

C. All communications between commissioners, between a commissioner and an applicant or petitioner, or between a commissioner and any other person or organization with respect to the judicial qualifications of an applicant or petitioner shall be kept confidential and discussed only among commission members. A commissioner or ex-commissioner shall not disclose confidential information, except as provided in these rules.

Section 92F-14(b)(4) says that an individual has a significant privacy interest in “information in an agency’s personnel file, or applications, nominations, recommendations, or proposals for public employment or appointment to a governmental position, except information disclosed under section 92F-12(a)(14).”

Section 92F-12(a)(14) would require the government to disclose the name, compensation, job title, business address, business telephone number, job description, education and training background, previous work experience, dates of first and last employment, position number, type of appointment, service computation date, occupational group or class code, bargaining unit code, employing agency name and code, department, division, branch, office, section, unit, and island of employment of present or former officers or employees of the agency.

Potential judicial nominees are not necessarily present or former officers or employees of the Governor’s Office or of the state government, so Civil Beat questioned whether 92F-12(a)(14) applies to them. We asked the Governor’s Office to clarify that point and provide any information that falls under the scope of the request and is required by state law to be disclosed.

The Office of Information Practices has written a pair of opinions germane to the request. Letter 1992-03 [pdf] said the lists of judicial nominees were protected from public disclosure. That portion was overruled by a 1993 court ruling in the Pray v. Judicial Selection Commission case.

A decade later, OIP issued another letter, 2003-03 [pdf], in which it stated that disclosing the list of nominees prior to the appointing authority’s selection of an appointee raises the potential for injecting partisan politics into the process and could frustrate the legitimate governmental function of making judicial appointments.

Despite that opinion, neither the governor nor the chief justice withheld the list of nominees prior to making their selections this year. Civil Beat asked the Governor’s Office whether it is the governor’s position that revealing the other communications from the Judicial Selection Commission would frustrate that legitimate government function.

If the documents can’t be released because they would reveal deliberations, we asked, then does that mean they contain something that the governor herself shouldn’t be privvy to — the thinking of the commission?

DISCUSSION Do the Judicial Selection Commission’s communications with the governor belong in the public record? Join the conversation and learn more about state courts.

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