The Hawaii Attorney General may subpoena bank records of an activist group opposing development of the proposed Thirty Meter Telescope on Mauna Kea, a state judge said on Tuesday.
But the judge left it to the opposing parties to hash out a compromise on the subpoena’s scope.
In a partial victory for KAHEA: The Hawaiian Environmental Alliance, 1st Circuit Judge James Ashford said he was inclined to limit the scope of the documents the organization’s bank must turn over to the state.
But, while Ashford technically stopped short of issuing a final order, he made it clear that he would not quash the subpoena entirely. The result was a blow to an organization that has long led opposition to the controversial observatory proposed for the summit of Mauna Kea, a site many Native Hawaiians consider sacred.
KAHEA has twice opposed the attorney general’s office in cases involving the project, including two appeals to the Hawaii Supreme Court. Advocates for Hawaii nonprofit organizations have said the subpoena “seems to be a pretext to attack an organization that may not share the same point of view as the investigating agency.”
“The targeting of organizations expressing opposition — and in particular, to government — is undemocratic and erodes our civil society,” leaders of the Hawaii Association of Nonprofit Organizations said in a recent Civil Beat column.
While the matter indeed touches on lofty questions about civil society organizations and the extent to which charities can support civil disobedience, the court focused on narrower issues — chiefly whether the attorney general was properly using its subpoena power and whether the request for information was so “unreasonable or oppressive” to KAHEA that the court should grant the organization’s request to quash it.
Ashford broke down the analysis in two parts: whether to let the subpoena move forward, and, if so, whether to let the attorney general demand all 18 categories of records the attorney general sought from First Hawaiian Bank.
Oral arguments over these questions lasted well over an hour, with much of the hearing involving KAHEA’s attorney, Richard Naiwieha Wurdeman, laying out the case that the subpoena should not be allowed to go forward at all.
Hawaii statutes give the attorney general power to conduct investigations and issue subpoenas when the office determines that doing so would be in the public interest. The attorney general also oversees public charities.
In this case, KAHEA established a fund to support Mauna Kea protesters, some of whom were arrested for blocking the mountain’s access road in 2019. The attorney general’s office has two main allegations: that KAHEA had violated nonprofit laws by not filing timely financial statements, and that KAHEA’s activities supporting alleged illegal protests violated laws governing nonprofits.
Ashford made clear that KAHEA missing a filing deadline would not justify the subpoena.
“It’s a little hard for me to get excited about the Form 990 oversight,” he said, referring to the federal tax form nonprofits must file.
That left Wurdeman to argue whether it was OK for a nonprofit to use charitable donations to support the Mauna Kea protests. Among other things, Wurdeman noted the protesters alleged to have illegally blocked the mountain road have merely been charged, and not found guilty of any crimes, and he asserted their actions were protected as free speech.
In brief, Wurdeman argued the investigation of KAHEA was politically motivated and simply not in the public interest.
“The public interest is to protect the Constitution and the First Amendment rights of people who disagree with the government,” Wurdeman said.
With the judge making clear he was inclined to deny KAHEA’s motion to quash the subpoena, Max Levins, a deputy attorney general working on the matter, had little to argue about.
He did, however, push back at the judge’s characterization of KAHEA’s missed filing deadline as insignificant. It’s illegal for a nonprofit to solicit donations when it has not filed its financial statements, Levins said, and the office has a duty to investigate that.
Ashford said he was inclined to quash about half of the types of documents the attorney general requested, but told the parties to work out a compromise that he indicated he would put in a final order at a hearing on Feb. 7.
Law Professor Calls Subpoena ‘Extraordinary’
The KAHEA subpoena isn’t the first Connors has issued related to the Mauna Kea protests.
Also, the office subpoenaed Hawaiian Airlines to try to get names of people who had donated frequent flyer miles to protesters but withdrew the subpoena after lawyers for the airline resisted the demand for records, the Honolulu Star-Advertiser reported.
But whether the subpoena of KAHEA’s records is a sign that Connors is taking a tougher approach to enforcing laws governing nonprofits generally was not clear.
Nicholas Mirkay, an expert on nonprofits who teaches tax law at the University of Hawaii’s William S. Richardson School of Law, said the typical approach would be to send a notice to an organization to file documents or cease activity that violated the nonprofit law.
“To go all the way to a subpoena seems like an extraordinary action by the attorney general,” he said.
Lawrence Tong, a deputy attorney general also working on the KAHEA case, declined to say whether the office had issued subpoenas to other nonprofits as part of investigations. But he said the office will investigate when it has reason to believe an organization has acted improperly.
He said the subpoena was just one tool the office has to enforce the laws governing nonprofits, and that it could also seek an administrative remedy, like a notice letter. The attorney general has the discretion to decide what tools to use, he said.
The KAHEA case was unusual, he said, because the organization had openly solicited donations to support activities that were not allowed by federal law governing nonprofits.
Asked about the nonprofit’s accusation the attorney general was overreaching, Tong said, “They’re entitled to their opinion.”
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