There’s a lot of news coverage of yesterday’s hearing on school furloughs before a panel of the 9th Circuit Court yesterday, but Governor Lingle’s appeal of a court ruling that blocked her from imposing across-the-board furloughs was argued last week before the Hawaii Supreme Court without drawing similar news coverage. If there was any reporting at all, I haven’t found it.
To make matters worse, a key public record–the audio recording of the oral arguments before the Supreme Court–is not available due to a “computer malfunction”.
Supreme Court Chief Clerk Naomi Komenaka responded personally to my inquiry yesterday regarding the recording of the oral arguments, which had not appeared in the court’s online archive.
“Unfortunately, our machine malfunctioned,” Komenaka said. “We were not able to record that particular proceeding.”
Komenaka declined to comment on whether there had ever been a similar failure in any previous case. She put the blame on “a new system.”
This morning, an entry for the case appears in the list of archived recordings with the notation:
[NOTE: Unfortunately, due to a computer malfunction, an audio file of this oral argument is unavailable.]
“A real Rose Mary Woods moment at the Supreme Court”, a lawyer friend quipped when I told him what happened, referring to the secretary who claimed to be responsible for the 18-1/2 minute gap in key recordings of President Richard Nixon’s discussing a coverup in the aftermath of the Watergate scandal.
The case before the Hawaii Supreme Court was Governor Lingle’s appeal of a court ruling last July overturning her order requiring furloughs for all state employees as a key part of a budget-cutting plan.
Circuit Judge Karl Sakamoto ruled that the furlough order violated provisions of the State Constitution that set out the collective bargaining rights of public employees.
Oral arguments were held on February 4th. According to the Supreme Court’s schedule:
NO. 29972 – Thursday, February 4, 2010 at 9 a.m.
HAWAII GOVERNMENT EMPLOYEES ASSOCIATION, AFSCME LOCAL 152, AFL-CIO, Plaintiff-Appellee, vs. LINDA LINGLE, as Governor of the State of Hawai`i, Defendant-Appellant, and DOES 1-10, Defendants.
In its appeal, Defendant-Appellant, Linda Lingle, as Governor of the State of Hawai`i, contends that the Circuit Court of the First Circuit erred in the following ways: (1) “the circuit court erred when it acted without jurisdiction and ruled on whether the furlough plan complied with Hawai?i Revised Statutes (HRS) § 89-9(d) [(Supp. 2008)] and the unilateral change doctrine”; (2) “[t]he circuit court erred when it concluded that [Lingle’s] furlough plan was not a valid exercise of her management rights under HRS § 89-9(d) and violated the unilateral change doctrine”; (3) “[t]he circuit court erred when it incorrectly ruled, as a matter of law, that [Lingle’s] furlough plan violated the constitutional right to bargain collectively in the public sector under [a]rticle XIII § 2 of the Hawaii constitution”; and (4) “[t]he circuit court erred in applying the test for injunctive relief” because “HGEA demonstrated no irreparable harm, and the public interest did not support granting the injunction, and the circuit court misread the . . . law.”
Recordings of arguments before the Hawaii’s Intermediate Court and Supreme Court are typically available to the public within 24-hours.
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It has happened in at least one other appeal – one of mine in late 2008.
Same thing: big public case, technical difficulties, recording unavailable.
It happens.
This would never happen if the Supreme Court used live court reporters with realtime capability to report oral arguments.
Agree. The cost to the state of a highly trained professional court reporter is a fraction of the costs associated in rehearing cases and relitigating proceedings when a “malfunction” occurs. This loss of the record at the highest level of the judiciary, is symptomatic of budget cutting at all levels of the state judiciary. In the end the public will suffer. Justice starts with preserving the record.
Tell me, are you surprised? This is Lindy Lingle afterall. Remember Bob Awana and his curious demise! Transparency, never, not at all.
Did someone forget to push the record button?
High-quality digital recorders can be had for less than $200. Courts could use a couple of these as backups.
I guess they never heard of “test-driving” the system to see if it works. There is so much governmental incompetence that it makes it easy to hide governmental misconduct.
Having a full time court reporter to handle transcribing all proceedings would definitely be cheaper than completely failing to record the events here. Recently in the court reporting industry, it has begun to be more common for business meetings to have court reporters even because the transcript of those meetings can be subpoenaed, why can private businesses be required to have transcripts while the government is not?!