Supreme Court affirms, but further limits, subpoena of KAHEA bank records

A Hawaii Supreme Court ruling on a subpoena by the attorney general to access bank records of a nonprofit organization opposed to the construction of the Thirty Meter Telescope has both parties claiming victory.

The high court on Tuesday unanimously partially approved and partially denied an appeal by KAHEA: The Hawaiian Environmental Alliance. The nonprofit had sought to quash Attorney General Clare Connors’ November 2019 subpoena to access its bank records.

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The court ruled 5-0 in favor of the subpoena, but further limited its scope. The original subpoena to First Hawaiian Bank ordered it to produce 18 categories of records from KAHEA’s accounts. KAHEA sued, and a Honolulu circuit judge limited the subpoena to nine categories of records.

“We agree with the state AG that its investigatory powers validated the subpoena,” the high court said in its 27-page opinion. “But we conclude that two subpoena requests seeking information about monies going into rather than coming out of KAHEA’s bank accounts are unreasonable.”

Connors sought the records to determine if KAHEA had solicited and used funds for an “illegal purpose,” violating its nonprofit status. The alleged illegal purpose was the support of protests that blocked construction of the TMT on Maunakea in 2019 which resulted in the arrest of 38 kupuna involved in the blockade.

In addition to cutting the AG’s request in half, the circuit court also limited access to accounts of the Aloha ‘Aina Support Fund, the purpose of which was to oppose TMT construction.

Claiming the subpoena was retaliatory and violated its First Amendment free speech rights, KAHEA appealed the circuit court’s order.

The high court ruled KAHEA “has not shown that retaliatory animus was a substantial or motivating factor in the subpoena’s issuance.” It also ruled KAHEA’s free speech rights were not violated, saying the subpoena “does not forbid … KAHEA from doing, saying, funding, or supporting anything.”

The opinion called the circuit court “an effective first line of defense against governmental overreach” in the case, as it “disallowed nine of the subpoena’s 18 requests and limited its scope to accounts related to the Aloha ‘Aina Fund.” But the Supreme Court also found two more requests “unreasonable” because they involved money donated to the fund, while the investigation centered on money spent by the fund.

“Where KAHEA gets its money does not matter when the inquiry involves whether KAHEA has used the fund to advance an illegal purpose,” the opinion stated. “And knowing who gave how much to the Aloha ‘Aina Fund will not help the state AG determine whether KAHEA has an ‘illegal purpose.’”

A statement from the AG’s office said the high court’s ruling “affirms the well-established understanding that, in exchange for considerable tax benefits subsidized by all taxpayers, nonprofits are subject to the broad investigatory oversight of the attorney general and to the many investigatory tools available to ensure compliance with the law.”

KAHEA posted on Facebook that the ruling “further whittled down the state attorney general’s subpoena of bank records … going beyond a lower court’s ruling that struck that subpoena in half.”

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The ruling sends the case back to the circuit court “for proceedings consistent with this opinion.”

Email John Burnett at jburnett@hawaiitribune-herald.com.