Supreme Court to hear KAHEA's case against State subpoena

Supreme Court to hear KAHEA's case against state subpoena

On May 13, 2021 at 2:00 p.m., the Hawaii Supreme Court will hear oral arguments from KAHEA: The Hawaiian-Environmental Alliance against the state’s subpoena of bank records for KAHEA’s Mauna Kea funds in November 2019. Attorney Naiwi Wurdeman, who represented KAHEA and the Mauna Kea Hui against the state’s Thirty-Meter Telescope permits in 2015 and 2018, will again present arguments to the Court.

In 2019, KAHEA asked the circuit court (Judge Ashford) to quash the state subpoena because it is overbroad and a targeted retaliation and harassment of KAHEA because of our opposition to the TMT. The state’s position is that KAHEA supports “non-violent direct actions”, including the five-month blockade of the Mauna Kea Access Road that involved the arrest of 33 kupuna, and therefore, supports criminal activity. The state also issued subpoenas to Hawaiian Airlines and the Office of Hawaiian Affairs as part of its apparent targeting of Mauna Kea protectors. Judge Ashford allowed most of the subpoena to stand. KAHEA appealed.

Other nonprofit organizations are concerned that the state is harassing Mauna Kea supporters. On January 28, 2020, the Hawaii Alliance of Nonprofit Organizations published a commentary in Civil Beat, "Hawaii AG Wrong to Subpoena Protest Group's Records." On January 31, 2020, the ACLU put out a statement expressing first amendment concerns over the subpoena against KAHEA. Nonprofit Quarterly commented, “[w]e've seen this type of unconstitutional overreach employed before when the rights of indigenous people come up against corporate interests.”

In February 2020, the Senate Committee on Hawaiian Affairs heard SB42, which would have prohibited investigations of nonprofits when Native Hawaiian constitutional rights and the rights of individuals engaged in nonviolent civil disobedience are at issue. The committee unanimously passed the measure, but it was deferred in subsequent committees.

Meanwhile, the group “Anonymous Donors,” petitioned for an extraordinary order from the Hawaii Supreme Court to prevent KAHEA bank records - which included some donor names - from being released to the state. Anonymous Donors raised their constitutional rights to freedom of association and privacy. However, KAHEA obtained a stay of the subpoena from Judge Ashford pending appeal and therefore the Supreme Court denied the petition because there was no immediate need for their intervention.

Adding another twist, in July 2020, the state went around Judge Ashford’s stay order by issuing a criminal search warrant for KAHEA’s bank records. The state refused to disclose the warrant or any information about their alleged criminal investigation. KAHEA asked Judge Ashford to hold the state in contempt of his stay order, but the Judge decided not to do so.

The state’s pretext for its investigation - “blocking a road” - hugely understates what the Kia‘i Mauna movement is and overstates the role that KAHEA plays in it. The movement to protect Mauna Kea is, amongst other things, the organization of thousands of people, led by Hawaiians and Hawaiian cultural practitioners to communicate, shelter, bookkeep, plan, clothe, feed, caretake, transport, clean, educate, and inspire multitudes across Hawai‘i and internationally. We bought a huge rice cooker, flashlights, mittens. KAHEA supported these many and diverse actions, most especially the ability of people to come together to voice collective opposition to further construction on Mauna Kea. These are the connective tissue of first amendment constitutional rights and our rights to participate in protest and protection.

The issues before the Hawaii Supreme Court will concern whether the state is using its investigative powers to retaliate against KAHEA and those we support. ACLU and Anonymous Donors filed amicus briefs in support of these constitutional issues. Please watch the arguments on May 13, 2021 at 2pm on the Court’s youtube channel: https://www.youtube.com/hawaiicourts