Supreme Court partially approves subpoena into bank records of group opposing TMT

The Hawaii Supreme Court has ruled in favor of a subpoena to access the bank records of a nonprofit organization that has opposed the construction of the Thirty Meter Telescope, but the ruling also further limits the scope of the subpoena.

In its unanimous opinion issued on Tuesday, the Supreme Court in part approved and denied an appeal by the nonprofit KAHEA: The Hawaiian-Environmental Alliance, which argued that the Hawaii Attorney General’s subpoena to access its bank records should be quashed.

“We agree with the State AG that its investigatory powers validated the Subpoena,” the Supreme Court’s opinion said. “But we conclude that two Subpoena requests seeking information about monies going into rather than coming out of KAHEA’s bank accounts are unreasonable.”

Attorney General Clare Connors sought KAHEA’s bank records in an investigation to determine if it had violated its status as a nonprofit by soliciting and using funds for an “illegal purpose” — namely by supporting the 2019 protests on Mauna Kea that blocked the TMT’s construction and led to the arrests of 38 kupuna (Hawaiian elders).

In November 2019 Connors issued the subpoena to First Hawaiian Bank, requiring it to produce 18 categories of records from KAHEA’s accounts.

It was granted in Circuit Court, although the court disallowed nine of the subpoena’s requests. The Circuit Court also limited the subpoena’s reach only to accounts belonging to the Aloha Aina Support Fund, which was used to oppose the construction of the TMT. The attorney general had asked for documents relating to all of KAHEA’s financial accounts.

KAHEA APPEALED the Circuit Court order and moved to quash the subpoena as whole, claiming it was retaliatory and had violated its First Amendment right to free speech.

But the subpoena did not show a retaliatory motive and did not violate KAHEA’s constitutional rights, according to the Supreme Court, as it “neither punishes nor forbids KAHEA’s speech.”

The opinion, however, commended the Circuit Court for blocking nine of the 18 subpoena requests and added that two additional requests were “unreasonable” because they concerned money going into the Aloha Aina Fund, even though the investigation revolved around the money that was leaving.

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

Both parties claimed victory after the Supreme Court’s decision.

A news release from the AG’s office said the decision reaffirmed that “in exchange for considerable tax-benefits subsidized by all taxpayers, non-profits 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 said on its Facebook page that the decision “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.”

Hawai‘i Supreme Court Affirms Attorney General’s Authority to Investigate Tax-Exempt Compliance of Non-Pro… by Honolulu Star-Advertiser on Scribd