Applying Hawaii's shield law

The AP has reported the story of the ACLU invoking Hawaii's new shield law in opposing the Brescia subpoena of an individual who has been making a documentary of Native Hawaiian burial practices.

The shield law, enacted last year, protects journalists and others who are acting similarly from having to testify or produce evidence.

The subpoenas stem from a property dispute in Kauai. For eight years, landowner Joseph Brescia had sought to build on a parcel on Naue Point where 30 graves had been discovered, according to the ACLU.

Though the state Supreme Court ruled against his construction plans, Brescia filed civil lawsuits against those he contends delayed his project.

As part of those suits, Brescia subpoenaed Keoni Kealoha Alvarez, who for two years has been documenting Native Hawaiian burial practices. Alvarez is not a party in the suits.
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Under the shield law, Alvarez is protected from complying with the subpoena, said ACLU senior staff attorney Daniel Gluck. The ACLU has sent Brescia's lawyer a letter saying the shield law voids the subpoenas, Gluck said, adding that it may be the first time since its enactment that the law has been invoked.

Another Alvarez lawyer, James Bickerton, said in a statement, "Simply put, Brescia has no right to these materials. If he can't see that by reading the law, we will ask the court to explain it to him."

Note that the paragraph stating that, "Though the state Supreme Court ruled against his construction plans, Brescia filed civil lawsuits against those he contends delayed his project," is somewhat misleading. In 2007 the Supreme Court did rule against Brescia in an appeal involving a shoreline setback dispute. But the current suit is unrelated to that case.