Oral Argument Before the Hawaii Supreme Court — SCAP-21-0000701
No. SCAP-21-0000701 Tuesday, February 28, 2023, 10 a.m.
THE OFFICE OF HAWAIIAN AFFAIRS; and THE BOARD OF TRUSTEES OF THE OFFICE OF HAWAIIAN AFFAIRS, Plaintiffs-Appellees, vs. LESLIE H. KONDO, in his official capacity as State Auditor, STATE OF HAWAIʻI OFFICE OF THE STATE AUDITOR, Defendants-Appellants.
The above-captioned case was set for oral argument on the merits at:
Supreme Court Courtroom
Aliʻiōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813
The oral argument was livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and on ʻŌlelo Community Television Channel 49.
Attorneys for Appellants Leslie H. Kondo, in his official capacity as State Auditor, and State of Hawaiʻi Office of the State Auditor:
Patricia Ohara and Robyn B. Chun, Deputy Attorneys General; Douglas S. Chin and Kukui Claydon, Special Deputy Attorneys General
Attorneys for Appellees The Office of Hawaiian Affairs and the Board of Trustees of The Office of Hawaiian Affairs:
Robert G. Klein, Kurt W. Klein, David A. Robyak, and James M. Yuda of Klein Law Group, LLC
NOTE: Order granting Application for Transfer, filed 06/27/22.
COURT: Recktenwald, C.J., Nakayama, McKenna, Wilson, and Eddins, JJ.
In 2019, Defendants Leslie H. Kondo in his official capacity as State Auditor and the State of Hawaiʻi Office of the Auditor commenced an audit of Plaintiffs, the Office of Hawaiian Affairs and the Board of Trustees of the Office of Hawaiian Affairs (collectively, OHA). Kondo asked OHA to produce unredacted minutes of executive sessions held from 2006 to 2019. OHA asserted that portions of its minutes were privileged attorney-client communications. It refused to turn over the unredacted minutes, though it gave Kondo a copy of the minutes with redactions. Claiming the report could not be done without the unredacted minutes, Kondo suspended his investigation.
OHA then sued the Auditor for declaratory relief under Hawaiʻi Revised Statutes (HRS) § 632-1. OHA sought a declaration that neither HRS § 23-5 nor the Hawaiʻi State Constitution requires OHA to disclose its privileged attorney-client communications to the Auditor. After an in camera review, the Circuit Court of the First Circuit ruled that OHA’s communications were privileged under Hawaiʻi Rules of Evidence Rule 503 (the rule of lawyer-client privilege) and HRS § 92-5(b)(4) (the attorney-client exception to the Sunshine Law). It granted summary judgment for OHA.
On appeal, OHA maintains that it should not be required to give the Auditor its unredacted executive session minutes because they constitute privileged attorney-client communications. The Auditor insists that this case does not meet jurisdiction, standing, and justiciability requirements. And on the merits, the Auditor argues that his authority under HRS § 23-5 allows him access to all of OHA’s communications, including those protected by the attorney-client privilege.