Volcanic Ash

The saga of Gov. Neil Abercrombie’s secrecy on the names of judicial candidates has taken a troubling new turn with his hand-picked director of the Office of Information Practices, Cheryl Kakazu Park, refusing to issue an opinion on whether state law allows the governor to keep secret the nominees given him by the Judicial Selection Commission.

Park said it’s a waste of time for OIP to become further involved because Abercrombie has said he’ll ignore any OIP opinion against him unless a court tells him he must abide.

Park’s “punt,” as one news story described it, isn’t surprising; her predecessor, Cathy Takase, was fired after ruling against Abercrombie with a letter reiterating a 2003 OIP ruling that the names must be released.

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.

Former Gov. Linda Lingle released the Judicial Selection Commission’s list of candidates and invited public comment. Both former Chief Justice Ronald Moon and current Chief Justice Mark Recktenwald have followed suit. Former Gov. Ben Cayetano released the names at the end of the process.

Abercrombie claims publicizing nominees detracts from the quality of judicial applicants and that critics of his secrecy haven’t proved he’s wrong.

To the contrary, it’s the governor who hasn’t offered any evidence that secrecy is necessary. He says he’s “been told” that some lawyers don’t apply out of fear that their names will be disclosed, and a handful of lawyers have written public papers supporting him.

On the other side, the last two chief justices, the state Supreme Court as a whole and the Hawai‘i Chapter of the American Judicature Society have all studied the matter and concluded that secrecy doesn’t result in better judges — and certainly doesn’t override the public interest in an open and honest judicial selection process.

Former Chief Justice Moon said lawyers worried about their names being disclosed probably aren’t good candidates to be judges.

Abercrombie is reverting to practices last seen in the Waihee administration,  when when we not only didn’t get better judges, but saw a politically compromised selection process that contributed to the Bishop Estate corruption scandal.

Just a few days after Joseph Wildman asked Gov. Neil Abercrombie to withdraw his nomination to be a Circuit Court judge on Maui because of unresolved business problems, Abercrombie yesterday sent the Senate a new appointee for confirmation in Rhonda Iwalani Lai Loo.

Wildman, a longtime friend of Abercrombie’s and once his legislative aide, stepped down because of more than $140,000 in federal tax liens against his former Honolulu law firm, where he is still an officer.

An Abercrombie spokesperson told the Maui News that the governor’s office didn’t do any significant background check on Wildman, relying on the vetting of the Judicial Selection Commission, which gives the governor four to six candidates to choose from.

The selection panel obviously didn’t do much vetting either; the person who first told me about Wildman’s tax problem said it took him 10 minutes to find it online when he became curious about the candidate’s background.

The quickness in naming a replacement suggests the governor’s office didn’t do much vetting of Loo, either, although she’s a safer choice as an established District Court judge and former prosecutor.

The skimpy background check is troubling, and part of the problem goes back to Abercrombie’s unfortunate decision to discontinue his predecessor’s practice — and that of the last two chief justices in making lower court appointments — of releasing the lists of finalists and inviting public comment before making appointments.

If Abercrombie had put Wildman’s name and the other candidates out for comment, surely the tax issue would have been flagged and a lot of embarrassment would have been avoided for both the governor and the candidate.

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When Abercrombie yesterday appointed Kaua‘i Councilman Derek Kawakami to finish the term of former state Rep. Hermina Morita, his office didn’t release but three names the Democratic Party gave him to choose from, but provided the list when asked.

The other two candidates were Neil Clendeninn, a doctor on the island’s North Shore and Kilauea Realtor Foster Ducker.

Gov. Neil Abercrombie’s ham-handed dismissal of Cathy Takase as acting director of the Office of Information Practices smells like the kind of petty political vindictiveness Abercrombie pledged would be absent from his administration.

Takase, who had applied for the permanent job, was dumped a month after she crossed the governor with an opinion — ignored by Abercrombie — that he must make public the lists candidates given him by the Judicial Selection Commission for appointing judges.

It’s Abercrombie’s right to bring in his own OIP director, but where it gets vindictive is that the governor’s office also filled Takase’s previous position of staff attorney for the OIP, preventing her from going back to her old job as customarily happens when an acting director is passed over for permanent appointment.

Ian Lind makes a pretty solid case that the governor overstepped his legal authority by meddling in the office to make a staff appointment below the director’s level.

Takase displayed courage by standing up for the public’s right to know against Abercrombie’s determination to return to a secretive ward healer system of judicial selection, fully aware that it would diminish her chances of permanent appointment to the job.

She didn’t deserve to be treated like trash for doing what she believed the law required of her, and it reflects poorly on the administration to stoop to petty retribution.

It also raises alarms that the governor intends to turn the office charged with assuring that the public has fair access to government information into a rubber stamp for the new administration’s penchant for secrecy.

As Abercrombie was fond of lecturing Mufi Hannemann during the campaign: “This is not how a governor acts. This is not what a governor does.”