Wednesday, August 24, 2011


OXYMORONICALLY SPEAKING: Little kids and we old futs have something in common- we both refuse to fall for BS conundrums.

While sophomoric angst-ridden teens may obsess over questions like "if a tree falls in the forest and no one is there to hear it, does make a sound " any wise-ass seven year old will suggest using a tape recorder to show it does and the crotchety crowd will just say "of course it does- what are you an idiot?".

But today that very question- or an approximation thereof- presents itself by asking "if a newspaper that has a 'paywall' sues the the governor's for his refusal to release the list of judicial nominees, does anyone hear about it?".

The answer is only if you find out through "'Civil Beath'" which, though similarly paywalled, offers as many free one-month subscriptions as you have email addresses.

That's a long way to go to say that the news itself is certainly welcome in that the Honolulu Star-Advertiser (S-A) is dipping into it's monopolistically-engorged pockets to do what they should have done the first time Governor Neil Abercrombie decided to flout tradition- and an Office of Information Practices (OIP) opinion- by refusing to release the list (after state senate approval).

The suit itself- provided in copy-protected form by Civil Beat which has come under fire for copy-protecting other public documents- attempts to refute the governor's claim that to release the list would, as the law says, "frustrate a legitimate government function"- that of appointing judges from a list provided by a judicial selection committee.

But strangely enough the suit fails to try to refute Abercrombie's contention other than essentially saying "no it doesn't."

Are we to assume the hearing will feature ten year old attorneys alternately screaming "yes it does... no it doesn't... yes it does... no it doesn't." until one grabs the others hair and the other bites the first one on the leg?

Abercrombie claims is that attorneys will be less willing to submit their names to the selection committee because they risk the ire of their employers, partners or even clients- both current and future- by letting them know they might be leaving.

But the S-A suit simply ignores the argument itself by refusing to address either of the two issues- first, whether a public announcement will in fact cause problems for the applicant and two, if that's true- whether it rise to the level of "frustration of a legitimate government function."

Now we're normally an unqualified supporter of the preamble to the Sunshine Law which presumes that government documents are to be made public unless they are specifically exempted by law- and that the law should be "liberally applied."

But we've got to admit that, after talking about this with five different attorneys over the past few months, we have come around to the governor's thinking. All five said that the fact that their names would become public has colored their decisions as to whether or not to apply for a judgeship.

The five include lawyers, who both work with partners and without, are in the government's employ and in private practice and do both criminal and civil law. And all said that the release of their names is a consideration and some said that indeed it has influenced their decision not to apply.

That means that- our admittedly small sample notwithstanding- the only question is whether, assuming the "fact" that what Abercrombie claims is true, does it actually "frustrate a legitimate government function?".

Whenever we've seen these kinds of determinations the "function" is stated. In this case it would be "the appointment of judges by the governor."

But the problem for the governor is that the law does not state that his job is to appoint judges from the widest possible pool, just that he pick from a list provided by the selection committee.

Attorneys will make the decision as to whether to seek a judgeship for any number of reasons. Certainly the usual drop in pay is a consideration so should the law require the state to make up the difference to widen the pool? Suppose the appointment requires a move from a neighbor island to Honolulu and the attorney has children who are in an excellent public school? Should he or she be compensated for having to put them in a private school if there is no comparable public school available?

Of course not. The legitimate government function is to provide a list, not to insure that the list includes every attorney in the state who otherwise would consider a judicial appointment.

The governor's claim regarding the release of the names of attorneys who aren't selected may be true. But it is for all intent and purpose it is irrelevant because unless the attorney general comes up with a heretofore unspoken rationale to say that this actually frustrates a legitimate government function Abercrombie's claim doesn't really stand up to scrutiny.

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