Posted tagged ‘Judiciary’

Abercrombie keeps attacking the public’s right to know

May 17, 2011

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.

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Hawai‘i federal judges look like poster kids for rail suit

May 16, 2011

There’s more than a little irony in the decision of all of Hawai‘i’s  federal judges to recuse themselves from presiding over an environmental lawsuit seeking to stop the $5.3 billion O‘ahu rail project.

The judges stepped aside because eight of the nine of them signed a letter in 2008 asking the city to reconsider the rail route, expressing security concerns about an elevated train whizzing down Halekauwila Street right past the windows of their chambers.

The mass recusal throws the lawsuit filed by former Gov. Ben Cayetano, state Sen. Sam Slom, businessman Cliff Slater and others to Judge A. Wallace Tashima of the 9th Circuit Court of Appeals in San Francisco.

The irony is that the judges might be one of the best examples of the plaintiffs’ claim that city officials gave illegally short shrift to alternate proposals in their headlong rush to ram the project through on an accelerated schedule.

Federal buildings have been one of the most worrisome targets of terrorist attacks since the Oklahoma City bombing, and the Hawai‘i judges made a reasonable argument that running the train so close to the Honolulu federal building posed unacceptable risks.

They received an arrogant and insulting response from the city to the effect that there are easier ways to blow away a judge than from a train, typical of the hostility toward reasonable concerns raised by responsible people that threatened any delay in the project.

If the Hawai‘i judges won’t be wielding the gavel, they might make interesting witnesses.

Where was the vetting on Maui judge appointment?

April 5, 2011

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.

***

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.

Politics and judges; Hanabusa’s housing

March 22, 2011

When I did a Google search to find out more about Joseph L. Wildman, appointed by Gov. Neil Abercrombie to be a Maui Circuit Court judge, the first two items of interest were that Wildman came out of the law firm of Rep. Gil-Keith Agaran, the House Judiciary chairman, and donated $1,610 to Abercrombie’s campaign for governor.

Does anybody detect the scent of politics?

That’s the problem with Abercrombie’s decision to keep secret the names of candidates provided him by the Judicial Selection Commission, abandoning the transparency practiced by the two previous governors from different parties and the last two chief justices, who all made the lists public when appointing judges.

It naturally breeds suspicion when the governor appoints a campaign donor or somebody with other obvious political connections and the public can’t see how the candidate’s legal credentials compare with those passed over.

Hopefully, the legal qualifications of Wildman and other appointees will be fully vetted by the Senate in the confirmation process, but without the lists of finalists, we still won’t be able to judge either the quality of the candidates put forth by the selection commission or the credibility of the governor’s choices.

Abercrombie contends that throwing out transparency to give lawyers who apply a level of privacy that even the Hawai‘i Supreme Court said wasn’t necessary will result in higher quality applicants.

But we’ll never be able to tell whether the applicants are better, of course, because the selection commission’s lists of top applicants that we were previously able to see and evaluate are now secret.

***

Several people have asked recently whether U.S. Rep. Colleen Hanabusa kept her promise to move into the 1st Congressional District she represents after the November election.

I put the question to the congresswoman’s spokesperson, Ashley Nagaoka, and got this response:

She has found several places in downtown Honolulu and will be deciding on one very soon. Her current home (a Ko Olina condo) will also be going on the market soon.

Sounds like reasonable progress, given the state of the local housing market and that Hanabusa has been in Washington most of the time since the election.

CJ won’t follow governor’s lead on judicial secrecy

March 10, 2011

There’s still a glimmer of sunshine in Hawai‘i’s judicial selection despite Gov. Neil Abercrombie’s effort to shut down public access to the process.

Chief Justice Mark Recktenwald, who appoints District Court judges while the governor appoints judges for the Circuit Court and appeals courts, released for public comment the names of 22 nominees provided by the Judicial Selection Commission for three O’ahu District Court openings and one on Kaua’i.

Abercrombie discontinued the practice of former Govs. Linda Lingle and Ben Cayetano of making public the JDC’s nominees for the Supreme Court, Intermediate Court of Appeals and Circuit Court, claiming that publicizing the names would discourage qualified attorneys from applying.

Abercrombie ignored an opinion by the Office of Information Practices that the lists of nominees are public records and dismissed the acting OIP director who issued the opinion.

Rectenwald obviously disagrees with the governor that it will produce inferior judges if the public participates in the vetting process and has the information needed to fairly evaluate the performance of those appointing judges.

Former Chief Justice Ronald Moon also released the names of District Court candidates and invited public comment before making his appointments, which are subject to Senate confirmation.

The Supreme Court under Moon discounted Abercrombie’s rationale for keeping the names secret, opining that “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 three O’ahu District Court openings are to replace judges Colette Y. Garibaldi and Faʻauuga L. To‘oto‘o, who were elevated to the Circuit Court, and Michael F. Broderick, who became president of the YMCA of Honolulu.

The JDC nominees released by Rectenwald are: Paula Devens; Shirley M. Kawamura; Lanson K. Kupau; Linda S. Martell; Melanie Mito May; Trish K. Morikawa; Karen T. Nakasone; Dean E. Ochiai; Maura M. Okamoto; David A. Pendleton; Catherine H. Remigio; G. Gary Singh; Renee Sonobe Hong; Kevin A. Souza; Paul B.K. Wong; Wayson W.S. Wong.

The Kaua’i vacancy occurred when Judge Calvin K. Murashige retired. The nominees are Edmund D. Acoba, Russell K.M.K. Goo, Daniel G. Hempey, Joseph N. Kobayashi, Alvin K. Nishimura and Sara L. Silverman.

Those wishing to weigh in on any of the candidates should send their comments to Recktenwald by March 18 via one of the following:

Mail: 417 S. King Street, Honolulu, HI 96813
Fax: 539-4703
Email: chiefjustice@courts.state.hi.us

Don’t cross Abercrombie with independent thought

March 7, 2011

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.”

Here comes the judge … shhh

February 3, 2011

Retired Circuit Judge Eden Elizabeth Hifo has made the first extensive public defense I’ve seen of the secrecy surrounding Gov. Neil Abercrombie’s judicial appointments, which I covered in my Star-Advertiser column last week.

In appointing Sabrina McKenna to the Hawai‘i Supreme Court, Abercrombie refused to disclose the names of the other candidates sent to him by the Judicial Selection Commission, from whose list he is required to choose.

The governor essentially said that the lawyers’ right to privacy is more important than the public’s right to know, breaking with the practice of Govs. Linda Lingle and Ben Cayetano of releasing the names — and in Lingle’s case, seeking public comment before making her appointment.

Abercrombie is going back to the dark days of Gov. John Waihee, when the secretive and unethical dealings of the Judicial Selection Commission figured prominently in the Bishop Estate scandal of the late 1990s.

The heart of Hifo’s argument is that lawyers who apply to be judges need privacy so their clients and partners don’t get huhu at them. She blames the sunshine for a decline in judicial applicants.

We want to encourage competent, experienced attorneys to offer themselves to the bench without risking damage to their careers if they should not be chosen. …

In recent years I know of four highly qualified attorneys, two women and two men, from three different and well-respected law firms, who were nominated for judgeships but not appointed. None of them works for those firms today.

In each case at least one of their partners retaliated against them for their willingness to leave the firm to join the judiciary. … In each case, clients learned from the public disclosure that the attorney was willing to leave private practice, and some clients expressed concern about finding a new attorney or law firm.

So basically, she’s arguing for the right of lawyers to deceive their clients and partners in order to advance their own interests.

I don’t know about you, but if I had a big date in court coming up that my life might depend on, I would certainly feel entitled to know if my lawyer planned to bail on me.

Locking the public out of the judicial selection process isn’t the answer here; the answer is for the state bar to enact rules to prevent firms from unreasonably retaliating against lawyers who offer themselves for public service — much like employers must make reasonable accommodation for those who participate in the military reserves.

I respect Hifo’s work as a judge and former journalist, but I’m sorry, the right of attorneys to mislead their clients and partners doesn’t trump the public’s right to fairly evaluate the performance of the governor and Judicial Selection Commission in handing out robes to jurists who will lord over us for 10 or 20 years.

Before local lawyers feel too sorry for themselves about the modest amount of public scrutiny we’re asking for, they should remember that in many other states, lawyers who want to be judges must put their names on public ballots.


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