Governor Abercrombie will likely have to eventually disclose the names of nominees forwarded by the Judicial Selection Commission for the current Supreme Court vacancy, judging from a 2003 opinion offered by the Office of Information Practices.

The opinion began by reviewing the history of disclosure of the names of judicial nominees.

Following establishment of the Judicial Selection Commission, its rules required the list of nominees forwarded to the governor or chief justice to remain confidential. So the practice was to keep all names secret except the one chosen for a position. But a lawsuit then challenged challenged the confidentiality rule.

The Supreme Court’s 1993 ruling in the case (Pray v. Judicial Selection Commission of the State of Hawai’i, 75 Haw. 333, 881 P. 2d 723) overturned the commission rule and the prevailing practice.

The Supreme Court held, inter cilia, that the JSC Rule requiring confidentiality did not apply to the Governor and Chief Justice, as appointing authorities, after the JSC has submitted the List of Nominees for consideration. The Supreme Court also held that “it is within the sole discretion of the appointing authorities whether to make public disclosure of the JSC’s lists of judicial nominees.”

I wasn’t able to find a copy of this Supreme Court decision online, but based on the OIP discussion, it appears it was limited to the issue of the constitutional provision requiring proceedings of the commission to be confidential, and the commission rule imposing a continuing confidentiality requirement, which was overruled. It apparently did not go to the issue of whether the state’s public records law, the Uniform Information Practices Act, would require disclosure. This is what the OIP opinion goes on to consider.

First, OIP rejected the notion that names should be protected as a matter of personal privacy, arguing that the public interest in disclosure clearly outweighs any privacy interest.

Once a List of Nominees is received by the Governor or the Chief Justice, there is a compelling public interest in knowing who has been nominated to fill judicial vacancies and in knowing how the appointing authority reached his or her decision in selecting a judge from the List of Nominees. Disclosure of the List of Nominees would ensure the openness of the judicial appointment process and would permit the public to scrutinize the Governor’s and the Chief Justice’s appointment power.

OIP then rejected the argument put forward by Gov. Abercrombie’s office. According to the Star-Advertiser earlier this week:

“The governor believes getting the names out is detrimental to attracting prospective judicial applicants,” his spokeswoman Donalyn Dela Cruz said yesterday.

“His approach in making judicial appointments is to ensure the confidentiality of these applicants.”

OIP again cited the Supreme Court’s decision:

…in our view, no stigma would attach to any judicial nominee not eventually appointed to office inasmuch as all nominees are by definition deemed by the JSC to be qualified for appointment.

The OIP opinion then went on:

The OIP does not believe that disclosure of the List of Nominees would deter qualified attorneys from applying for judicial appointments. The OIP’s discussion about the Ethics Commission nominees is equally applicable to the present issue:

[A] strong argument can be made that the fact that an individual has been selected as one of the two nominees to the Commission would be construed by most individuals and the general community as an honor, and would not operate as a deterrent to qualified applicants.

OIP Op. Ltr. No. 93-13 at 13 (Sept. 17, 1993). Accordingly, any argument that disclosure of the List of Nominees prior to the appointing authority’s selection would frustrate a legitimate government function by reducing or weakening the pool of qualified judicial candidates is not compelling and is rejected.[emphasis added]

OIP eventually found other grounds for keeping the list of nominees secret. Taking that at face value, however, it’s impact is limited. OIP concluded the list could remain confidential because:

…public disclosure of a List of Nominees prior to selection of an appointee could subject the appointment process to outside influences and partisan pressure. [emphasis added]

This appears to mean that the full list is subject to disclosure under the UIPA once the appointment is made, if not before.