In re Investigation of: Kahea.
150 Haw. 43
| Haw. | 2021Background
- In July 2019 protesters blocked access to the Thirty Meter Telescope (TMT) site on Mauna Kea; KAHEA operates an "Aloha ʻĀina Support Fund" that provides logistical support (including bail) for non‑violent direct actions opposing TMT.
- In November 2019 the Hawaiʻi Attorney General served a subpoena duces tecum on First Hawaiian Bank seeking 18 categories of KAHEA-related bank records from 1/1/2017–11/12/2019, citing HRS § 28‑2.5 authority to investigate charitable organizations' compliance and § 501(c)(3) eligibility.
- KAHEA moved to quash, arguing the subpoena exceeded statutory authority, was unreasonable/overbroad and oppressive under HRS § 28‑2.5(e), and violated the First Amendment (including retaliation). The circuit court disallowed 9 requests and limited the subpoena to accounts holding Aloha ʻĀina Fund assets but otherwise denied the motion to quash.
- KAHEA appealed to the Hawai‛i Supreme Court, contesting the AG's statutory authority, the subpoena's reasonableness, and alleged First Amendment violations and retaliation.
- The Supreme Court affirmed that the AG had authority under HRS § 28‑2.5 to issue the subpoena, held most requests relevant, but reversed the circuit court as to two specific requests (deposit tickets and credit memos) because records about money coming into the Fund were unreasonable given the AG’s stated inquiry into money leaving the Fund and § 501(c)(3) purpose.
- The Court rejected KAHEA’s facial First Amendment burden claim and found KAHEA did not show retaliatory animus was a substantial or motivating factor in issuing the subpoena; the case was remanded consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statutory authority under HRS § 28‑2.5 to issue subpoena | KAHEA: AG lacked authority because investigation was retaliatory, not in public interest, not governor‑directed, and not tied to alleged violations | AG: subpoena issued under broad § 28‑2.5 investigatory power to protect charitable assets and probe § 501(c)(3) eligibility | Court: AG did not exceed § 28‑2.5 authority; decision to investigate rests with AG and is reviewable via constitutional and § 28‑2.5(e) challenges |
| Reasonableness/oppressiveness under HRS § 28‑2.5(e) | KAHEA: subpoena is an overbroad fishing expedition and oppressive | AG: records sought are relevant/material to inquiry into charitable purpose and use of funds | Court: most requests reasonably related to inquiry; but requests 5 (deposit tickets) and 8 (credit memos) seeking inflows were unreasonable and quashed |
| First Amendment — facial burden on speech | KAHEA: subpoena substantially encroaches on free speech/association and should be subject to strict scrutiny | AG: subpoena is investigatory, not punitive or censorial; it does not prohibit speech | Court: subpoena is investigatory and incidental burden only; not an unconstitutional facial restriction on speech |
| First Amendment — retaliation claim | KAHEA: AG issued subpoena to punish KAHEA for anti‑TMT advocacy; adverse action would chill expression | AG: investigation based on legitimate nonretaliatory concerns about charitable status; no evidence retaliation was substantial factor | Court: KAHEA showed protected activity and a chilling effect, but failed to show retaliatory animus was a substantial/motivating factor; retaliation claim fails |
Key Cases Cited
- NAACP v. Button, 371 U.S. 415 (distinguishes laws that criminalize or forbid speech from investigatory subpoenas)
- Hartman v. Moore, 547 U.S. 250 (First Amendment prohibits government retaliation for protected speech)
- O'Brien v. Welty, 818 F.3d 920 (elements for First Amendment retaliation claim)
- Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274 (burden‑shifting when retaliation shown)
- Bob Jones Univ. v. United States, 461 U.S. 574 (tax‑exemption tied to public benefit and conformity with public policy)
- Laird v. Tatum, 408 U.S. 1 (distinguishes chilling claims from compulsory investigative actions)
- Wayte v. United States, 470 U.S. 598 (prosecutorial/investigatory discretion is ill‑suited to broad judicial review)
- NAACP v. Claiborne Hardware Co., 458 U.S. 886 (limitations on holding organizations liable for others' unlawful acts; discussed and distinguished)