Senator Shimabukuro Amends SB42 (CB 2/11/20)

Lawmakers Limit Scope of Bill Banning AG’s Probe of Hawaiian Nonprofit
By Blaze Lovell, Civil Beat, 11 Feb. 2020

A key Senate panel unanimously voted Tuesday to narrow the extent to which the state Attorney General’s Office can investigate certain nonprofits.

The Hawaiian Affairs Committee amended Senate Bill 42 to prohibit AG investigations from conflicting with Native Hawaiian cultural rights protected under the state constitution.

The proposal in front of lawmakers is a reaction to the AG’s probe of KAHEA: The Hawaiian Environmental Alliance. The state subpoenaed financial documents related to the nonprofit’s support of protests that have halted the construction of the Thirty Meter Telescope on Mauna Kea.

The bill originally would have prohibited the AG from investigating any nonprofit that engages in acts of civil disobedience, which state lawyers raised objections to because it could essentially tie the state’s hands in investigating any nonprofit.

“Our intent is not to hinder the AG from doing its job,” said Sen. Maile Shimabukuro, chair of the Hawaiian Affairs Committee.

Shimabukuro introduced the measure by putting its contents into a blank bill last week. She amended the bill to include the narrower language involving conflicts, which was put forward by University of Hawaii law professor Ken Lawson.

In KAHEA’s case, the state is conflicted, Lawson said, because it has an interest in seeing TMT built on Mauna Kea, a mountain considered sacred by many Native Hawaiians. 

“If you support the governor in trying to protect the TMT, but then at the same time you’re supposed to protect native rights under the Constitution, that’s a conflict,” Lawson said by phone. “If you investigate the nonprofit trying to protect the protectors you’re in conflict.”

The activists who have halted construction of TMT call themselves kiai, or protectors.

Deputy Attorney General Craig Iha told lawmakers at a hearing that the original version of the bill would hinder the AG’s ability to investigate any nonprofits.

The AG’s office testified that civil disobedience is not protected speech under the Constitution, citing cases in the 2nd and 9th federal circuit courts.

Further, it argued that individuals can seek redress through the courts if they feel their constitutional rights were violated.

It also took the Legislature to task for what it views as overreaching.

“Thus, although the Legislature can enact laws making certain activities illegal, it should not dictate to the Executive Branch how those laws are enforced,” the AG’s testimony said.

A circuit judge ruled Friday that the AG could obtain certain financial records of KAHEA’s.

Bianca Isaki, an environmental lawyer and board secretary for KAHEA, said the AG overstates the role the nonprofit has actually played in the protest.

For example, Isaki’s written testimony says KAHEA helped purchase a large rice cooker for the camp.

“The movement is, amongst other things, an organization of thousands of people who communicate, housekeep, bookkeep, shop, order, plan, clothe, feed, transport, clean, educate, and inspire multitudes across Hawaii and internationally,” Isaki said. “If that’s supporting illegal activities, there are a lot of people doing that.”

KAHEA’s website lists three funds: the Mauna Kea Education and Awareness Fund, the Mauna Kea Legal Defense Fund and the Aloha ‘Aina Support Fund.

While the legal defense fund finances legal efforts, the Aloha ‘Aina Support Fund is used to support “non-violent direct actions” opposing the telescope, such as “funding for frontline logistics, including provision of bail where appropriate, supplies, transportation, technical services, and community meetings convened for such purposes.”

SB 42 also had the support of numerous individuals, Young Progressives Demanding Action, the American Civil Liberties Union of Hawaii, and the Hawaii Alliance of Nonprofit Organizations, which has over 300 member nonprofits in the state.

“Regardless of how one feels about the TMT, or KAHEA, or all nonprofits for that matter, we should all be very concerned that a state entity is using the auspices of its office to overtly control a situation in which it has a direct stake,” HANO President Lisa Maruyama said.

The bill would still need to clear a joint hearing by the Senate Judiciary and Ways and Means committees before going to the full Senate for a vote. It would also need to win approval in the House.