Still wondering what accounted for Gov. Neil Abercrombie’s landslide loss in the primary election?
One telling part of the answer was hidden in this week’s general election results.
I’ll start with a question. Which candidate or issue on the general election ballot drew the most support from voters statewide?
Here are a few clues. It wasn’t U.S. Sen. Brian Schatz, who cruised to a re-election victory against token opposition with 66.8 percent of the votes. It wasn’t our new governor-elect, who didn’t quite climb past the 50 percent mark. And it wasn’t the proposed constitutional amendment to allow public funding to go to private preschools, a hotly contested measure which went down to defeat despite nearly $1 million spent by advocates.
So what was this stealth measure that drew across-the-board bipartisan support without drawing much, if any, public debate, and passed in a landslide without any money being spent in its support?
It was the proposed constitutional amendment to require the public be informed whenever the Judicial Selection Commission, which screens candidates nominated to serve as state judges, approves a short list of finalists from which the governor, or the chief justice (in the case of District Court judges), will make their selection. The amendment will require that the list be publicly disclosed at the same time it is forwared to the governor or the chief justice.
The measure was approved by 302,953 voters, or 82 percent of all those casting ballots. It drew 23 percent more votes than Senator Schatz, and got more than four times as many votes as Gov. Abercrombie received in his primary loss.
That’s important because the passage of this amendment was the final round of a very public fight that Abercrombie picked nearly as soon as he assumed office.
It started in January 2011, less than two months after the new governor was sworn in, when he nominated Sabrina McKenna to a 10-year term on the Hawaii Supreme Court. In a departure from the practice of recent governors, including Republican Linda Lingle, Abercrombie declined to release the names of other candidates on the list received from the Judicial Selection Commission.
Abercrombie, with his signature stubbornness, rejected OIP’s counsel and refused to budge.
A spokeswoman for the governor said at the time that Abercrombie was most concerned about the privacy of those nominated but not selected, and that keeping their names confidential was necessary in order to attract the best qualified lawyers to judicial service.
However, critics quickly pointed out that reversing the practice of the previous two governors, and the chief justice, and instead retreating into secrecy, was the opposite of the “new day” his administration had been promising. It was the abrupt begining of frayed relations between the new governor and a substantial part of his Democratic base, which only got worse over time.
And this wasn’t the only issue that was deeply frustrating a growing number of Abercrombie supporters. On a number of issues, former supporters were finding the governor’s office very good at communicating his messages to the public, but said the governor and his staff didn’t display the same skill at listening to important constituencies and communities.
That was certainly the case with the governor’s refusal to reconsider his opposition to public disclosure of judicial nominees.
Within weeks, the Office of Information Practices, the agency charged witih interpreting and enforcing the state’s open records law, advised that state law requires the names of all nominees to be disclosed once the Senate’s confirmation process was completed.
Its view was supported by a prior opinion issued by the agency in 2003, which in turn cited a 1993 Hawaii Supreme Court court decision. In that case, the high court found nothing in the State Constitution or the public records laws preventing release of nominees names. Whether to make the list public was solely within the discretion of the appointing authority, meaning the governor or the chief justice, the court held.
And the high court had dismissed the same argument being put forward by the Abercrombie administration.
“In our view,” the court ruled, “no stigma would attach to any judicial nominee not eventually appointed to office inasmuch as all nominees are by definition deemed by the JSC (Judicial Selection Commission) to be qualified for appointment.”
But Abercrombie, with his signature stubbornness, rejected OIP’s counsel and refused to budge. “His position hasn’t changed,” a representative told the media.
Then, just a month after giving advice the governor didn’t want to hear, the OIP’s acting director was abruptly removed from her position with just one day’s notice. The message was loud and clear.
The governor, it seems, was doubling down on his attack on transparency. Perhaps he thought the public wasn’t interested or didn’t care. He was wrong.
The public’s right to know will not be subject to the personal or political preferences of future governors, nor potential second-thoughts by the Judicial Selection Commission itself.
“The troubling part is that the governor now has not only shut the public out of the process of selecting judges who wield great power over our lives, but has politicized the OIP in an unprecedented way that diminishes its credibility and relevance,” columnist and former Honolulu Star-Bulletin editor Dave Shapiro wrote at the time.
The governor vowed not to budge unless ordered by a court. So Oahu Publications, owner of the Honolulu Star-Advertiser, took him up on the offer and filed a lawsuit to force public disclosure of judicial nominees.
The decision wasn’t long in coming. Circuit Court Judge Karl Sakamoto ruled in favor of the newspaper and against the governor in November 2011. Sakamoto ruled that Abercrombie would have to finally disclose the list of nominees for the seat filled by McKenna, and further directed that future governors would be required to disclose the list no later than when the nominee was confirmed by the Senate.
Judge Sakamoto also awarded the newspaper $69,027.06 in fees and costs incurred in its fight against the governor’s policy of secrecy.
Then, while the Abercrombie administration was considering an appeal of Sakamoto’s decision, the Judicial Selection Commission forced the governor’s hand by amending its own rules to provide for disclosure. Although the commission rules had previously called for strict confidiality of its proceedings, it now agreed that its list of nominees would be made public at the same time it was provided to the governor.
It was a bold step that offered Abercrombie a graceful way to retreat. Now that the commission would initiate the public disclosure of nominees on its own, there was no point in the governor’s continued insistence on confidentiality.
Attorney Robert Thomas, who represented Oahu Publications and the Star-Advertiser in the case, later commented: “By amending its rules to allow the public to know the names of the nominees at the same time a governor does, the JSC is acknowledging there are no good reasons to keep these lists secret once the Commission has concluded its deliberations, and that there are excellent public policy and empirical reasons for the public to have access to this information at the same time a governor does.”
The administration wisely decided not to appeal the substantive court ruling, but continued to appeal the payment of legal fees and costs to the nespaper and its attorneys, succeeding in disallowing $564.60 of copying costs from the total initially awarded. But each round of appeals added to the legal costs, and the newspaper was back asking for more than $20,000 in additional fees and costs.
The case has bounced back and forth between the Intermediate Court of Appeals and the Supreme Court for the past two hears. On July 31, 2014, the Supreme Court again ruled in favor of the newspaper, and sent the case back to the Intermediate Court of Appeals for another determination of fees and costs that taxpayers will have to pay. Those proceedings, and the administration footdragging, continue.
This wasn’t the only issue on which the governor disappointed and eventually alienated many of his former supporters. It’s just one of many separate examples in which he unnecessarily picked fights that couldn’t be won.
Meanwhile, though, the voters were offered the opportunity to make the new disclosure process permanent. The constitutional amendment on the ballot simply proposed to take the updated Judicial Selection Commission rules favoring openness and transparency and writing that requirement into the constitution. If it becomes a constitutional requirement, then the public’s right to know will not be subject to the personal or political preferences of future governors, nor potential second-thoughts by the Judicial Selection Commission itself.
And voters responded, giving the unheralded proposal the highest approval rating of any candidate or issue on Tuesday’s ballot.
The landslide vote was, in my view, perhaps a final public rebuke to the outgoing governor.