The Far Reach of the Lorenzo Doctrine—The Title Insurance Industry

The Lorenzo doctrine was adopted by the federal courts in the Ninth Circuit for jurisdictional purposes but it has been used in the land title insurance industry for denying insurance claims.

In 1994, the State of Hawai‘i Intermediate Court of Appeals (“ICA”) heard an appeal where the defendant-appellant, Anthony Lorenzo, was seeking an appeal that the trial court committed an error when his motion to dismiss his indictment was denied, which led to his conviction. Lorenzo argued that the Hawaiian Kingdom continues to exist because the overthrow of the Hawaiian government on January 17, 1893, was illegal. And since he was a citizen of the kingdom, the trial court did not have any jurisdiction over him. The case was State of Hawai‘i v. Lorenzo.

For the first time ever regarding the United States overthrow, the ICA distinguished the government from a sovereign State—the Hawaiian Kingdom, or at least tried to. In the past, these two terms were interchangeable. In its decision, the ICA cited a 1991 appeals case that was heard by the United States Court of Appeals for the Second Circuit, Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 47 (2d Cir. 1991) that quoted another case in the Second Circuit, National Petro-chemical Co. v. M/T Stolt Sheaf, 860 F.2d 551, 553 (2d Cir. 1988), as well as quoting from §201 from the Restatement (Third) of the Foreign Relations Law of the United States (1987). The Second Circuit Court stated:

The [Palestine Liberation Organization] PLO first argues that it is a sovereign state and therefore immune from suit under the Foreign Sovereign Immunities Act (the “FSIA”), 28 U.S.C. § 1602 et seq. (1988). As support for this argument, it relies on its “political and governmental character and structure, its commitment to and practice of its own statehood, and its unlisted and indeterminable membership.” Brief for Appellant at 7. However, this Court has limited the definition of “state” to “‘entit[ies] that ha[ve] a defined territory and a permanent population, [that are] under the control of [their] own government, and that engage[] in, or ha[ve] the capacity to engage in, formal relations with other such entities.’” [citations omitted]. It is quite clear that the PLO meets none of those requirements.

The definition of a State includes a government and not that the government is synonymous with a State. Palestine has yet to be recognized by the United States as a sovereign and independent State, which prevented the PLO from claiming that Palestine is a State in U.S. federal courts. Therefore, whenever the issue of Palestine arises in federal court proceedings, the court itself or one of the parties to the lawsuit would invoke the “political question doctrine” and the case would be dismissed. Only until the United States recognizes Palestine as a State will the federal courts acknowledge Palestinian Statehood.

The Hawaiian Kingdom is different from the Palestinian situation in that the United States already recognized the Hawaiian Kingdom as a State in its treaties. In other words, the Hawaiian Kingdom did “ha[ve] a defined territory and a permanent population, [that are] under the control of [their] own government, and that engage[] in, or ha[ve] the capacity to engage in, formal relations with other such entities.” In fact, the Hawaiian Kingdom had an embassy in Washington, D.C., and the United States had an embassy in Honolulu.

The question that came before the ICA in the Lorenzo appeal is whether the State continues to exist despite the overthrow of its government by the United States on January 17, 1893. The ICA stated, “The essence of the lower court’s decision is that even if, as Lorenzo contends, the 1893 overthrow of the Kingdom was illegal, that would not affect the court’s jurisdiction in this case. Although the court’s rationale is open to question in light of international law, the record indicates that the decision was correct because Lorenzo did not meet his burden of proving his lack of jurisdiction.” Here, the ICA would appear to have conflated the Hawaiian State with the government of the Hawaiian Kingdom when it stated, “the 1893 overthrow of the Kingdom was illegal.”

This distinction between the State and the government was explained in the Restatement (Third) of the Foreign Relations Law of the United States that the ICA cited. In §202 is states:

Recognition of state and government distinguished. Recognition of a state is a formal acknowledgment that the entity possesses the qualifications of statehood, and implies a commitment to treat the entity as a state. Recognition of a government is formal acknowledgment that a particular regime is the effective government of a state and implies a commitment to treaty that regime as the government of that state. Ordinarily, that occurs when a state is incorporated into another state, as when Montenegro in 1919 became a part of the Kingdom of Serbs, Croats, and Slovenes (later Yugoslavia).

According to Professor Oppenheim, once recognition of a State is granted, it “is incapable of withdrawal” by the recognizing State, and Professor Schwarzenberger explains that “recognition estops the State which has recognized the title from contesting its validity an any future time.” §202 goes on to say that the “duty to treat a qualified entity as a state also implies that so long as the entity continues to meet those qualifications its statehood may not be ‘derecognized.’ If the entity ceases to meet those requirements, it ceases to be a state and derecognition is not necessary.”

So because the Hawaiian State cannot be “derecognized,” it would continue to exist despite the overthrow of the government of the Hawaiian Kingdom on January 17, 1893. Evidence of “when a state is incorporated into another state” would be an international treaty, particularly a peace treaty, whereby the Hawaiian Kingdom would have ceded its territory and sovereignty to the United States. Examples of foreign States ceding sovereign territory to the United States by a peace treaty include the 1848 Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico that ended the Mexican-American war, and the 1898 Treaty of Peace between the United States of America and the Kingdom of Spain that ended the Spanish-American War.

The 1898 Joint Resolution To provide for annexing the Hawaiian Islands to the United States, is a municipal law of the United States without extraterritorial effect. It is not an international treaty. Under international law, to annex territory of another State is a unilateral act, as opposed to cession, which is a bilateral act between States.

In 2002, the federal court in Honolulu, in United States v. Goo, referred to the State of Hawai‘i v. Lorenzo and the Lorenzo doctrine. For 28 years both the State of Hawai‘i courts and the federal courts have been applying the Lorenzo doctrine wrong. Under international law, which the ICA in Lorenzo acknowledged may affect the rationale of the ICA in placing the burden on the defendant to prove the Hawaiian Kingdom “exists as a State,” shifts the burden on the party opposing the continued existence of the Hawaiian Kingdom that it “does not exist as a State.”

When the ICA acknowledged that Lorenzo did state in his motion to dismiss the indictment that the Ha­waiian Kingdom “was recognized as an independent sovereign nation by the United States in numerous bilateral treaties,” it set the presumption to be the Hawaiian Kingdom’s existence as a State under international law and not the existence of the State of Hawai‘i as a political subdivision of the United States.

Under international law, it was not the burden of the defendant to provide evidence that the Hawaiian Kingdom “exists as a State” when the Lorenzo Court already acknowledged its existence and recognition by the United States. Rather, it was the burden of the prosecution to provide evidence that the Hawaiian Kingdom “does not exist as a State.” As a result, the Lorenzo Court’s ruling was wrong and all decisions that followed in State of Hawai‘i courts and federal courts applying the Lorenzo doctrine also were wrong.

The Lorenzo doctrine also has been used by the title insurance industry. In a denial letter to a title insurance claimant, Michael J. Moss, Senior Claims Counsel for Chicago Title Insurance Company, specifically referenced the Lorenzo doctrine applied in two State of Hawai‘i court cases and one federal court case as a basis to decline the insurance claim under an owner’s title insurance policy in the amount of $178,000.00. Moss stated:

The Hawaiian Courts have consistently found that the Kingdom of Hawai‘i is no longer recognized as a sovereign state by either the federal government or by the State of Hawai‘i. See State v. Lorenzo, 77 Hawai‘i 219, 221, 883 P.2d 641, 643 (Haw.App.1994); accord State v. French, 77 Hawai‘i 222, 228, 883 P.2d 644, 649 (Haw.App.1994); Baker v. Stehua, CIV 09-00615 ACK-BMK, 2010 WL 3528987 (D. Haw. Sept. 8, 2010).

Like the courts of the State of Hawai‘i and the federal courts, the Senior Claims Counsel incorrectly applied the Lorenzo doctrine, which should have been in favor of the title insurance claimant. The title insurance claim was that the “Owner’s deed was not lawfully executed according to Hawaiian Kingdom law [because] the notaries public and the Bureau of Conveyance weren’t part of the Hawaii[an] Kingdom, that the documents in [the claimant’s] chain of title were not lawfully executed.”

In other words, the Lorenzo doctrine, when applying international law correctly, would force the title insurance company to pay the claimant his $178,000.00 covered under the owner’s title insurance policy he had purchased to protect him in case there was a defect in the title.

All titles to property that were conveyed after January 17, 1893, are defective because the deeds were “not lawfully executed according Hawaiian Kingdom law [because] the notaries public and the Bureau fo Conveyances weren’t part of the Hawaii[an] Kingdom, [and] that the documents in [the claimant’s] chain of title were not lawfully executed.”

Defective titles to land in Hawai‘i also renders all mortgages tied to the land to be void and that title insurance also pays off the balance of the loan to the bank under the Lender’s Policy. For more information on this topic, download the Royal Commission of Inquiry’s Preliminary Report on Land Titles Throughout the Realm and its Supplemental Report on Title Insurance.

18 thoughts on “The Far Reach of the Lorenzo Doctrine—The Title Insurance Industry

  1. Our Queen was too smart for their commercial endeavors….you see, she left us the key when she demanded Cleveland to investigate UNDER PROTEST. So here is her great defense to signing negotiable instruments, contracts, or prommisory notes………sign under protest.
    Indeed, this right is yours to execute and should you decide to question the validity and lawfulness of the documents and process, say lack of full disclosure, or decide to recover your losses once uncovered….then you’ll have a way to do so, or a way out. So,
    if you’re closing on a home, endorsing a check or other negotiable instrument from another party, or signing docs to finance a new car, basically any instrument under the Uniform Commercial Code, you should sign with all rights reserved, without prejudice, or under protest under HRS 490-1-308. It would be a Federal crime to deprive one of their right to sign under protest, or their right to nationality.

  2. Lopaka, in both protests that the Queen submitted it had nothing to do with what you are talking about. When did the Hawaiian Kingdom ever adopt the Uniform Commercial Code and the Hawaii Revised Statutes into Hawaiian Kingdom Law? Never. The Queens protests emphasized the U.S. illegal invasion, occupation, findings of President Cleveland and his agreement to restore her as the constitutional sovereign of Hawaii. Hawaiian Kingdom Law and Humanitarian Law is what protects us NOT American Law in an American process that you are ALWAYS promoting. The protest actually goes totally against what you are promoting. You are so hung up on your American process you totally failed to see what this Article is really saying.

    • You need to think deeply about American exceptionalism. The exception to the rule of extraterritorial jurisdiction is in respect of American/US citizens. The Kmiec memo identifies this…and it was American merchants, trade and commerce that congress was protecting under their war powers to seize Hawaii during the Spanish-American war. Follow me for a second…
      To add to what is shared as it covers the commercial and statutory regime that governs our way of life as it exists today although separate from the law of occupation is not irrelevant to neither. Can you honestly say, or any member of the council besides the foreigners, pledge in fact, that you are not subject to the Social Security Act and do not have a SSN? Or are not a US citizen or subject to US laws and HRS, or County ordinances? And you want to claim humanitarian law? Can you even execute your civil and political rights or even your right to nationality?
      By exploring the depths of our subjugation, we discover a better way to face and deal with our situation. We learn patience, and gain a meaningful understanding. Such an endeavor requires however attentive listening and neutral action.
      Truly on a state’s rights level and the international plane, the council is on point. I’m a realist with regards to IR. But the people, the nation, not the acting government, is all emotional riled and energy is wasted on defending against or perpetuating a fraudulent US public trust established over the dead bodies of our ancestors. Not so much understanding the system. Those who can benefit and wish to know, will benefit…those who don’t will be forgiven.
      Simply put, codes reflect what is customary but not all customs are codified. Hawaiian constitutional, civil and criminal law is a prime example. Some was even incorporated into HRS by our ancestors for our protection and livelihoods during 1978 ConCon….you should know this…cause some of Hawaiian customs are still protected under HRS. So you should know that it was customary for an individual in the Hawaiian Kingdom to promise to perform or accept an offer under reservation of rights especially knowing that they are dealing with usurpers.
      Our Queen simply practiced that in action when authenticating her diplomatic protest to the US President under the treaties, not the Commander in Chief under congressional war powers, for it was US trade and commerce that served as the underpinnings for the American merchants to do what they did. Thus our traditional customs are limited but protected under their HRS 1-1, 1-7, 490-1-308 and a whole lot of other statutes.
      Indeed, not all international customs were codified in convention and not all nations were parties like the Hawaiian Kingdom. Surely not all nations are accustomed to Euro-American rules of war. To elaborate, the application of codified customs via international rules of war has not been ratified by the constitutional sovereign of the kingdom but by the council.
      Furthermore, as mentioned in the beginning I’m simply sharing the commercial and statutory regime that governs trade and commerce here in the islands now. I am not blind to what is being shared or ignorant of it.
      As a side note, these chats with you remind me of the times as an HSLP member…boy do I miss them days at the beer garden!

    • When did the Hawaiian Kingdom, a neutral government ever adopt the Hague and Geneva convention or better said American/European customs of war?

      • Lopaka, simply put the Hague and Geneva conventions are just codifications of already existing customary international laws being used by the international community. All they did by codifying it was putting these practices all together in one cohesive body so it could be better organized. You don’t need to adopt something you are already practicing. It wasn’t something that had been legislated it already existed, practiced and recognized by the whole international community.

  3. This article laid out the rationale of applying international law correctly to the Lorenzo doctrine. Although it is specifically referencing mortgages and land titles, I see it reaching far beyond that. If the Courts would use the Lorenzo doctrine and correctly apply international law the effect would be unprecedented. IMHO, it would open up the flood gates for injured parties to file suits for damages under the Alien Tort Claims Act.
    Alien Tort Claims Act (ATCA), also known as Alien Tort Statute, U.S. law, originally a provision of the Judiciary Act of 1789, that grants to U.S. federal courts original jurisdiction over any civil action brought by an alien (a foreign national) for a tort in violation of international law or a U.S. treaty. MHO

    • You need to be an alien and Keanu already tried that….Ashwander rules…political question…you can’t take the benefits of being a US citizen under the powers of commerce then claim to be an alien with a social security number. Do more homework!

      • Lopaka, your long-winded rants are non-sense. The HK got this Judge boxed in. It is clear they pointed out the fatal error of these courts misapplying the Lorenzo doctrine and not applying international law as required. When the Lorenzo doctrine is applied correctly with international law it proves these article 3 courts have no subject matter jurisdiction and the only way for them to have jurisdiction would be to act as article 2 courts. Once that happens it is game over for them and for you. Your nonsensical process of applying American law in an occupied state goes bye bye brah.
        Are you not tired of being schooled? All contracts are void. Your stupid idea of benefits for being a U.S. citizen under commerce is gone. These contracts can be used as evidence of torts against the United States. SSN, U.S. taxes, State of Hawaii taxes, ….etc. Now as Article 3 courts they already admit we are (aliens) not U.S. citizens and we can file Alien Tort claims against the U.S. under the Alien Tort Claim Act. It’s a civil suit for damages which include war crimes. The burden of proof is easier since it would require proof by preponderance of the evidence compared to a criminal prosecution of a war crime which is proof beyond a reasonable doubt.
        Lopaka, as far as I can see you are just like these U.S. courts, mis applying the law and facts to get the results they want to keep the scam going. Like how the HK just exposed the U.S. courts I just exposed you. Booya!!

          • Lopaka it’s sad that when a person is confronted with the truth the only come back is might, makes right.

          • Go file your suit, stop interfering and intervening in my commentary. You get what you deserve and instruments of commerce alongside trade with foreign nations is the bottom line! Respect the hierarchy!!!

          • Lopaka, I only respect the truth, not any hierarchy. When you post on an open forum your comments are open for critiquing. This is not your personal blog.

  4. Kekoa and Lopaka,
    Mahalo i ke Akua no kou ʻike i ke aloha a me ke kūpaʻa i ke aupuni Hawaiʻi
    I’m looking from the outside, as a Hawaiian hearted haole, learning more from your dialog than I could learn elsewhere. Your passions are commendable, but verbal warfare over the learning, understanding, and acceptance of each other’s viewpoints is what American courts want to see. Your both ohana to your Nation, and it is obvious you’re both extremely knowledgeable. I was hanai by a Hawaiian family that taught me more than a haole should know, but I did learn the values of trust and honor amongst family members.
    So I’m sure I’ll be told to stay out of Hawaiians affairs, but my God has tasked me with telling only of honesty, Love, compassion, and to seek knowledgeable, wisdom, and understanding. So that is, as I see it, the same values your Queen and others of your ancestors shared. Your stronger and wiser when you respect each other’s opinions, since you both share the same final Goal, the ReBirth and Long Life of the Independent Nation of Hawaii.
    Mahalo ke akua
    Respectfully
    Setapano/Steve

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