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The Hawaii Supreme Court on Thursday questioned the purpose and nature of a state subpoena meant to look into the financial records of a nonprofit that has opposed the Thirty Meter Telescope.
The state Attorney General’s Office’s subpoena required First Hawaiian Bank to produce certain records related to the accounts of the nonprofit KAHEA: The Hawaiian Environmental Alliance. The subpoena was meant to aid an investigation into whether the group, as a registered nonprofit, had deceptively solicited and used donated funds to support an illegal activity — namely the obstruction of government operations during the 2019 anti-TMT protests on Mauna Kea that led to the arrests of 38 kupuna (Hawaiian elders).
KAHEA had moved to quash the subpoena in Circuit Court, and appealed the court’s decision that in part granted and denied its motion. The appeal was then transferred to the
Hawaii Supreme Court.
While hearing oral arguments from representatives of both the Attorney General’s Office and
KAHEA on Thursday, the Supreme Court justices
often tried to figure out why the state needs to know the identities of
KAHEA’s donors during its investigation.
“This investigation really boiled down to the use of funds, not the source of funds,” Justice Todd Eddins said. “So how is the identity of the donors’
material relevant to your investigation?”
Deputy Attorney General David Day said that the information could become relevant during the course of the investigation.
“Ultimately, without knowing what that information would possibly reveal, it’s impossible to know whether or not it would be germane to the investigation,” Day said. “This is about the initiation of the investigation, and when looking at these matters, ultimately, a full picture of what is the fund and how it operates is revealing as to whether or not a violation has taken place.”
KAHEA attorney Richard Naiwieha Wurdeman earlier had called the attorney general’s subpoena a “witch hunt” and a “fishing expedition” that was meant to stop and retaliate against those who wanted to stop construction of the TMT.
“Their intent was clear. … They’re going to go after anyone who’s in any way associated with or affiliated with peaceful protest up on Mauna Kea,” Wurdeman said. “This over-broad subpoena to stifle, to suppress, to intimidate, to cause donors to stop submitting donations — all of these things are an infringement on the First Amendment rights of
KAHEA and its members.”
Later, Chief Justice Mark Recktenwald again asked why donor identities were necessary, and after that Justice Paula Nakayama echoed Eddins’ sentiment that while it’s in the attorney general’s purview to ensure that entities comply with their nonprofit status, the state’s purpose for the subpoena made donor identities irrelevant.
“In this case you didn’t say you were looking at the records just to make sure they were complying … with tax-exemption status requirements,” Nakayama said. “You said it was for a particular purpose, for whether or not funds were being used for the improper purposes of a charity. … What does it matter what the identity of the donors are?”
Day, as he did after Eddins’ question, said the information could become relevant as the investigation went on.
Meanwhile, Justices
Sabrina McKenna and
Michael Wilson were curious about how protesters’ First Amendment rights may be implicated.
“What analysis are we supposed to use for … a situation like this, which seems to involve issues of free speech and free association?” McKenna asked.
Day said the subpoena does not infringe on free speech, but that there is an “associational argument” involving KAHEA’s support of the civil disobedience displayed by demonstrators on Mauna Kea.
The Attorney General’s Office also had issued a subpoena to Hawaiian Airlines to get the names of people who donated frequent-flyer miles to activists who wanted to protest on Mauna Kea. It also issued a subpoena to the Office of Hawaiian Affairs to find out how it was aiding in protest efforts.
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