The Hawaii Supreme Court heard oral arguments Thursday on whether to deny a circuit court subpoena for financial records relating to a nonprofit that provided support for Thirty Meter Telescope protesters.
In January 2020, the state attorney general was authorized by a circuit court judge to issue a subpoena to First Hawaiian Bank for the financial records of KAHEA: The Hawaiian-Environmental Alliance, a nonprofit that advocates for environmental issues in Hawaii. In particular, those records included the identities of people making donations to the nonprofit.
At the time, Attorney General Clare Connors said the subpoena was justified for two reasons: first, that KAHEA used funds to support a protest that illegally blocked the Maunakea Access Road in 2019, and second, that KAHEA was late in filing taxes and so an investigation into its finances was warranted.
In response, KAHEA filed a motion to quash that subpoena, which the circuit court granted only in part. KAHEA then appealed the case to the Supreme Court.
Arguing for KAHEA on Thursday, Honolulu attorney Richard Naiwieha Wurdeman repeatedly called the attorney general’s subpoena a “fishing expedition” or “witch hunt,” saying there is no plausible connection between the records the state seeks and the 2019 TMT protests.
“The subpoena itself that was issued … listed 18 different categories that the attorney general sought to get information from on all accounts that KAHEA held at First Hawaiian Bank,” Wurdeman said. “Including such things as surveillance photos including those from ATM machines, directories that translate numerical bank codes into addresses of branches, photos of debit cards issued … a whole variety of things that was just everything under the sun that the attorney general could think of.”
Wurdeman argued that the degree to which the attorney general sought to scrutinize KAHEA’s financial workings was disproportionate to the nonprofit’s actions, and imposed a chilling effect on KAHEA’s First Amendment rights.
“(The 2019 TMT protest) was a peaceful demonstration,” Wurdeman said. “There is no connection whatsoever as far as KAHEA or its members being arrested themselves … and stuff like providing bail for those arrested, that’s been held up by the U.S. Supreme Court … . So the efforts by the AG, we would submit, in this very overreaching fishing expedition was really to stifle KAHEA’s efforts to do what it was entitled to do under the First Amendment.”
Maui attorney Lance Collins, also arguing for KAHEA, added that there is no compelling reason for the attorney general to know the identifies of people making small donations to KAHEA.
“There’s no evidence in the record at all to support that KAHEA’s done anything criminal,” Collins said. “The only way to link the 38 individuals who were arrested (during the 2019 protests) to KAHEA is guilt by association.”
“The only thing that’s clear in the record is that the attorney general does have a retaliatory animus towards individuals and groups that oppose the government’s policies on Maunakea,” Collins concluded.
Honolulu attorney David Day, arguing for the state, said KAHEA, as a nonprofit, is legally required to make its financial records available to the state attorney general, and that KAHEA, by its own admission on its website, was using funds received by donations to provide material aid to the TMT protesters via an “Aloha ‘Aina Fund.”
A description of the Aloha ‘Aina Fund on the KAHEA website read that the funds would be used to support logistical efforts during the TMT protests, Day said, indicating a direct connection between the nonprofit and illegal activity on the mountain.
“We have a fund which we know, or at least we believe, to have been used to support illegal activity,” Day said, adding that investigating the potential misuse of charitable funds requires a full investigation of those funds’ origins.
The Supreme Court justices sharply questioned both sides, but spent more time grilling Day.
Justice Todd Eddins said one of the statutes Day cited as justification for the subpoena was also cited in two prior cases: a 1983 case involving racially discriminatory admissions policies at Bob Jones University in South Carolina, and a 1980 case involving the Church of Scientology and its alleged blackmail of Internal Revenue Service agents.
“KAHEA’s not running a discriminatory school, it’s not burglarizing the IRS,” Eddins said. “It just doesn’t strike me as the magnitude as what constitutes an illegal purpose.”
Ultimately, the court did not reach a decision Thursday, but took the matter under advisement. A decision will be announced at an undetermined future date.
Email Michael Brestovansky at firstname.lastname@example.org.