Hawaii Amendment 1: 14 out of 18 states release names submitted to governor for selection to judicial office

At issue in Hawaii’s Amendment 1 is the question of whether or not the governor is obligated to release the names of the finalists submitted by the state’s judicial nominating commission. In the last several years there’s been a great deal of litigation on whether or not the information is to be open to the public. The state’s current Attorney General in legislative testimony and Governor have both argued that information should not be released, that it is exempt from the state’s freedom of information law (Uniform Information Practices Act) and that it would “chilling effect” on potential applicants.

(Governor Neil) Abercrombie’s press secretary, Donalyn Dela Cruz, said Tuesday evening, “The governor firmly believes that public disclosure is detrimental to attracting potential judicial applicants. His approach in making judicial appointments is to ensure the confidentiality of these applicants.”

Amendment 1 would add a sentence to require the judicial selection commission release the names at the time of submission to the governor or chief justice (for District Court appointments)

The judicial selection commission shall disclose to the public the list of nominees for each vacancy concurrently with the presentation of each list to the governor or the chief justice, as applicable.

Information released by commission or governor (14 states)

In practice, if not by explicit statute or constitutional requirement, 14 of the 18 states that used a commission-based system like Hawaii’s (i.e. where the governor is bound to the list of names, as opposed to the list being simply a voluntary suggestion) release the names at the time of submission.

  1. Alaska: Information released by nominating commission. For example, in filling a position on the Alaska Supreme Court in December 2012, a list of all applicants was posted to the commission’s website and the four finalists named as well..
  2. Arizona: Information released by nominating commission. For example, in filing a 2012 vacancy on the Arizona Supreme Court the Commission on Appellate Court Appointments issued this press release listing the three nominees.
  3. Colorado: Information released by Governor. For example, in filing a position on the Colorado Supreme Court in 2013, a list of the three nominees was released by the Governor’s Press Office.
  4. Florida: Information released by nominating commission. For example, in filling a position on the 5th District Court of Appeal in March 2014, the following letter was posted to the nominating commissions’ (there are several, one for each District) website.
  5. Indiana: Information released by nominating commission. For example, in filling a position on the Indiana Supreme Court in 2012, the Judicial Nominating Commission issued a press release with the names of the three finalists.
  6. Iowa: Information released by nomination commission. For example, in filling a position on the Iowa Court of Appeals in 2013, the State Judicial Nominating Commission issued a press release with the names of the three finalists.
  7. Kansas (court of last resort only): Information released by nomination commission. For example, in filling a position on the Kansas Supreme Court in August 2014, the Supreme Court Nominating Commission issued a press release with the names of the three finalists.
  8. Missouri: Information released by nominating commission. For example, in filling a position on the Missouri Supreme Court in October 2012, the Appellate Judicial Commission issued a press release with the names of the three finalists.
  9. Nebraska: Information released by governor. For example, in filling the Nebraska Supreme Court, Third Judicial District seat in 2012 the governor’s office issued a press release with the names of the three finalists.
  10. New York (court of last resort only): Information released by nominating commission. For example, in filling a position on the New York Court of Appeals (state’s court of last resort) in September 2014, the Commission on Judicial Nomination issued a press release with the names of the seven finalists.
  11. Oklahoma: Released by nomination commission. For example, in filling a position on the Oklahoma Supreme Court in December 2012, a spokesperson with the Administrative Office of the Courts listed the names for a reporter.
  12. Rhode Island (no intermediate appellate court): Information released by nominating commission. For example, in filling a position on the Supreme Court in 2009, the proceedings and recommendation vote were conducted in a public hearing that was reported in the news.
  13. Utah: Information released by nominating commission. For example, in filling a position on the Court of Appeals in 2010, the Court of Appeals Nominating Commission issued a press release with the names of the three finalists.
  14. Wyoming (no intermediate appellate court): Information released by nominating commission. For example, in filling a position on the Supreme Court in 2013, the information appeared in an Associated Press article.

UPDATE: In addition to these 14 states, New Mexico which uses a hybrid/combination system (commission submits names to governor, governor selects, but the parties then determine who faces off in the general election). There, as in the other states listed above, the names are released by the commission. For example, in August 2012, the Judicial Nominating Commission recommended two names to the governor both of which were released by the commission which conducted public hearings reported by the Associated Press.

Information not released (4 states)

  1. Connecticut: The list of nominees is released by neither the Judicial Selection Commission nor the Governor.
  2. Hawaii
  3. South Dakota (no intermediate appellate court): Appears the information is not released. For example in 2009 South Dakota’s then-Governor Mike Rounds indicated to the Associated Press “he would not reveal the other names on the list because people apply with the understanding their names will not be made public.” UPDATE: as in Vermont there appears to be a specific prohibition on release of the names.
  4. Vermont (no intermediate appellate court): The list of nominees is released by neither the Judicial Nominating Board nor the Governor. Moreover, a state statute explicitly prohibits the Board from releasing the names (“All proceedings of the board, including the names of candidates considered by the board and information about any candidate submitted by the court administrator or by any other source, shall be confidential.”)