Oral Argument Before the Hawaii Supreme Court — SCAP-20-0000110
(2nd Amended 5/11/21)
No. SCAP-20-0000110, Thursday, May 20, 2021, 2 p.m.
In RE INVESTIGATION OF KAHEA (Department of the Attorney General, State of Hawaii, AG Subpoena No. 2019-158).
The above-captioned case has been set for argument on the merits at:
The oral argument was held remotely and live streamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts.
Attorney for Appellant KAHEA:
Richard Naiwieha Wurdeman
Attorneys for Appellee Dept. of the Attorney General:
Lawrence L. Tong, David D. Day, and Lauren M. Nakamura, Deputy Attorneys General
Attorneys for Amicus Curiae Anonymous Donors to Kahea:
Lance D. Collins of the Law Office of Lance D Collins, and Bianca Isaki of the Law Office of Bianca Isaki
NOTE: Order granting Application for Transfer, filed 03/10/21.
NOTE: Order granting in part and denying in part joint motion for leave to participate in oral argument; the Anonymous Donors to KAHEA will be allowed to participate in oral argument, filed 04/27/21.
NOTE: Amended Notice of Setting for Oral Argument due to rescheduling from 05/13/21 at 2:00 p.m. to 05/20/21 at 2:00 p.m, filed 05/11/21.
COURT: Recktenwald, C.J., Nakayama, McKenna, Wilson, and Eddins, JJ.
The Department of the Attorney General, State of Hawaii, served a subpoena duces tecum on First Hawaiian Bank (the “Subpoena”) requiring the bank to produce certain banking and financial records related to the accounts of KAHEA: The Hawaiian Environmental Alliance (“KAHEA”). KAHEA moved to quash the Subpoena in the Circuit Court of the First Circuit. The State Attorney General opposed KAHEA’s motion to quash; it argued that its subpoena requests were justified because of its ongoing investigations into whether KAHEA: (1) improperly solicited donations while noncompliant with a statutory reporting requirement; and (2) used charitable donations to advance illegal purposes. The Circuit Court issued an order granting in part and denying in part KAHEA’s motion to quash the Subpoena and entered judgment for the State Attorney General. KAHEA’s appeal of that order and judgment was transferred from the Intermediate Court of Appeals to this court. On appeal, KAHEA argues that the Circuit Court reversibly erred by denying in part KAHEA’s motion to quash. The Subpoena, KAHEA argues, is unreasonable and improper. Moreover, KAHEA claims the Subpoena was motivated by the State Attorney General’s desire to harass KAHEA because of its opposition to the development of an observatory on Mauna Kea. The Subpoena, KAHEA argues, is unconstitutional retaliation for KAHEA’s involvement in constitutionally protected activities. The Department of the Attorney General opposes KAHEA’s appeal. It argues that the Subpoena is a lawful exercise of the State Attorney General’s authority to issue administrative subpoenas and that KAHEA has neither presented any evidence of the retaliatory motive it alleges nor stated a viable constitutional claim.