Case Notes

• Publication year: 2021

CASE NOTES

Supreme Court

Administrative

In re Investigation of: KAHEA, No. SCAP-20-0000110, September 21, 2021, (Eddins, J.). In July 2019, construction of an astronomical observatory (the "Thirty Meter Telescope or TMT") near the Mauna Kea summit loomed. That month, law enforcement officers arrested over thirty protesters on Mauna Kea's slopes. Hoping to thwart the Thirty Meter Telescope's construction, the protesters had blocked the road leading to the TMT's planned site. Later, the State charged these protesters with obstructing a highway or public passage. The arrests and charges followed a lengthy legal and political battle over Mauna Kea's future. KAHEA: The Hawaiian Environmental Alliance, is an outspoken anti-TMT partisan in that scrap. One way KAHEA opposed development on Mauna Kea was through its Aloha 'Aina Support Fund. According to KAHEA's website, the Aloha Aina Support Fund "prioritizes frontline logistical support for non-violent direct actions taken to protect Mauna Kea from further industrial development." In November 2019, the State of Hawaii Attorney General (the "State AG or Attorney General") issued a subpoena duces tecum to First Hawaiian Bank (the "Subpoena"). The Subpoena commanded the bank to produce eighteen categories of records from KAHEA's accounts. KAHEA moved to quash the Subpoena. It claimed the Subpoena was retaliatory harassment. KAHEA said the State AG wanted to punish it for its anti-TMT advocacy. The State AG maintained that the Subpoena was not retaliatory. The Attorney General said an ongoing investigation justified the Subpoena. The State wondered whether the Aloha 'Aina Support Fund's (the "Fund") financial support for direct action on Mauna Kea meant KAHEA had an illegal purpose that made it ineligible for an income taxation exemption under Internal Revenue Code section 501(c)(3). The circuit court did not quash the entire Subpoena. But it disallowed fifty percent of the Subpoena's requests. And though the Subpoena sought documents connected to "all financial records of KAHEA," the court trimmed the Subpoena's scope to "any account that holds assets belonging to the Aloha 'Aina Support Fund." On appeal, KAHEA argued that the whole Subpoena should have been quashed because it: (1) exceeded the Attorney General's statutory authority under Hawaii Revised Statutes § 28-2.5 (2009); (2) was unreasonable, oppressive, and subject to quashing under Haw. Rev. Stat. § 28-2.5(e); and (3) violated KAHEA's First Amendment rights. Each of these arguments in some way flowed from KAHEA's underlying contention that the Subpoena was retaliatory. The State AG portrayed the Subpoena as a legitimate and reasonable exercise of its investigatory powers. The Attorney General rejected KAHEA's retaliation claim as unsupported by the record. It asserted the Subpoena's constitutionality. The Hawaii Supreme Court agreed with the State AG that its investigatory powers validated the Subpoena. But the Hawaii Supreme Court concluded that two Subpoena requests seeking information about monies going into rather than coming out of KAHEA's bank accounts was unreasonable. The Hawaii Supreme Court also concluded that KAHEA's argument about the Subpoena curtailing its First Amendment...