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The state Attorney General’s Office can subpoena the financial records of a nonprofit organization that raises money to oppose the Thirty Meter Telescope planned for Mauna Kea, a Circuit Court judge ruled Friday.
At a previous hearing, Judge James Ashford told attorneys for the Attorney General and Kahea: The Hawaiian-Environmental Alliance that he was inclined to allow the subpoena for nine areas of Kahea’s financial records but was not inclined to let the Attorney General obtain information related to nine other areas, including ATM surveillance photos.
Ashford gave both sides until Friday to negotiate the nine areas, but they returned to tell Ashford that they could not reach agreement.
In addition to the nine areas Ashford said he was inclined to approve, Deputy Attorney General Max Levins told Ashford that his office had decided to limit the subpoena to only two of the other nine areas they had failed to agree on: checks going into Kahea’s account and checks going out.
Kahea attorney Richard Naiwieha Wurdeman repeatedly objected to the overall concept of the subpoena for Kahea’s First Hawaiian Bank information, telling Ashford that the nonprofit was being targeted “for its opposition to the government.”
He alternately called the subpoena “a fishing expedition” that was “unreasonable and oppressive” and “not in the public interest” and that violated his client’s constitutional rights.
The Attorney General, Wurdeman said, failed to show “any illegality about Kahea,” but the subpoena would have “a chilling effect” on the group’s donors.
“There’s no justification,” Wurdeman told Ashford.
Kahea has faced off against the Attorney General in two contested cases that went before the Hawaii
Supreme Court regarding Mauna Kea.
The Attorney General’s Office previously issued a subpoena to Hawaiian Airlines seeking the names of people who donated their frequent-flyer miles so protesters could join the protest at Mauna Kea, and it subpoenaed the Office of Hawaiian Affairs, which had provided portable toilets, rubbish collection and other amenities at the protest camp at the base of Mauna Kea Access Road, according to a court memorandum filed by Wurdeman.
Before Friday’s ruling by Ashford, the state Senate Committee on Hawaiian
Affairs on Tuesday moved out a bill that would prohibit the Attorney General’s Office from investigating nonprofit organizations such as Kahea.
The revised version of Senate Bill 42 would prohibit the Attorney General “from investigating nonprofit organizations for exercising their constitutional right to free speech and assembly or protecting constitutional grants of rights, such as the traditional and customary Hawaiian cultural rights.”
Language in SB 42 says an investigation of a nonprofit organization by the Attorney General “can be intimidating and could be deemed to be retaliatory when the nonprofit engages in nonviolent civil disobedience against a government program, practice, or policy.”
In an email to the Honolulu Star-Advertiser, Krishna F. Jayaram, special assistant to Attorney General Clare Connors, wrote:
“We oppose SB42 for various reasons. We have the duty to oversee charitable organizations and investigate them when we believe they are not following the law. If someone thinks our investigation is violating constitutional rights then
a court can take a look a
nd decide — there’s a process in place to make sure that people and entities’ constitutional rights are protected.
“SB42’s attempt to upfront limit our investigative authority is against the public interest. This is a step in the wrong direction.
“The bill is also based on the mistaken belief that there’s a constitutional right to block a public road. There isn’t a constitutional right to block a road. That is a crime, plain and simple.
“We will continue to vigorously investigate any nonprofits, whenever there is reason to do so.”
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