The past week, the Maui County Board of Ethics adopted a set of new rules, but quickly put one of them on hold pending further consideration after it was criticized as a “gag order.”

Civil Beat reported:

That provision bound the complainant to a confidentiality requirement forbidding that person or citizens group from disclosing the pending complaint’s existence or sharing details of it publicly. If the ethics board or staff found that confidentiality was violated, they could use that as grounds to dismiss the complaint without further investigation.

This isn’t the first time such a confidentiality clause has been at issue in Hawaii. Both the State Ethics Commission and the Campaign Spending Commission had the same kind of confidential clause written into law, rather than just as a rule. And violation of those laws carried potential criminal penalties.

Both were successfully challenged in federal court and found to be unconstitutional.

In 1991, a federal lawsuit challenged a state law that prohibited someone who filed a complaint with the State Ethics Commission from publicly disclosing information about the complaint (John Roe v. Akamine, et al.). After the complaint was filed, the state agreed the statute was unconstitutional and unenforceable, a finding that was contained in a subsequent order by then-Federal Judge David Ezra.

And in 1992, I was the plaintiff in a federal lawsuit what alleged a similar confidentiality clause governing complaints filed with the Campaign Spending Commission was a clear violation of the First Amendment’s right to free speech.

Here’s a brief description of that case, Lind v. Grimmer.

At that time, I was publishing a monthly newsletter, Hawaii Monitor. An article in the June 1992 issue described a complaint I had filed with the Campaign Spending Commission that accused the University of Hawaii Professional Assembly (UHPA), the union which represents faculty in the UH system, of failing to properly disclose expenditures in support of Gov. John Waihee’s 1990 reelection bid (“
Commission sets hearing on UHPA complaint/UH faculty union PAC belatedly reports cost of Waihee ad
“).

That short article prompted UHPA to complain to the commission that I had violated the confidentiality provision of the law. In an attempt to head off further commission action, my lawsuit was filed asking for the law to be declared unconstitutional and an injunction issued to prevent its enforcement. I was represented by Honolulu attorney Clayton Ikei.

After the federal lawsuit was filed, the Campaign Spending Commission quickly reversed course and agreed the law was unconstitutional. However, Judge Alan Kay rejected a stipulated settlement of the case and the state, in turn, proceeded to defend the statute.

Judge Kay issued his decision on April 20, 1993, in which he found the law to be “substantially overbroad” and a violation of First Amendment rights.

The state appealed to the 9th Circuit, which issued a strongly-worded decision upholding Kay’s ruling.

The 9th Circuit, like Judge Kay, found the law to be “fatally overbroad,” and “unconstitutional both on its face and as applied to appellee Lind.”

The court ruled that the State of Hawaii “may not condition Lind’s ability to trigger an investigation on the theory that by filing a complaint he bargained away his First Amendment rights.”

As I recall, the state then sought to take the case up to the U.S. Supreme Court, but their petition for a Writ of Certiorari was denied. Case closed.

Lind v Grimmer is still cited in First Amendment cases.

I suspect the Maui rule was proposed without taking into account this troubled history of confidentiality laws and rules, and their complex relationship to freedom of speech.

And so, to the folks at the Maui Ethics Commission–proceed with great caution.