On July 12, 2022, the Ninth Circuit Court of Appeals issued an Order dismissing the appeal of the Hawaiian Kingdom that came before a three-judge panel comprised of Justices Silverman, Callahan, and Collins. The Order stated that the Ninth Circuit Court “lacks jurisdiction over this appeal because the challenged orders are not final or appealable.” The Court explained, “A district court order is…not appealable [§1291] unless it disposes of all claims as to all parties or unless judgment is entered in compliance with Federal Rule of Civil Procedure 54(b).”
The Hawaiian Kingdom v. Biden proceedings are still taking place at the district court in Hawai‘i, which is why the Ninth Circuit denied the appeal. While the Ninth Circuit was deliberating, District Court Judge Leslie Kobayashi issued a third Order granting the Federal Defendants’ motion to dismiss with prejudice because the case presents a political question. The basis for her third Order was the same regarding her previous two Orders that were before the Ninth Circuit. Without providing any supporting evidence that it is a political question, Judge Kobayashi stated:
Plaintiff bases its claims on the proposition that the Hawaiian Kingdom is a sovereign and independent state. However, “Hawaii is a state of the United States… The Ninth Circuit, this court, and Hawaii state courts have rejected arguments asserting Hawaiian sovereignty.” “‘[T]here is no factual (or legal) basis for concluding that the [Hawaiian] Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature.’”
As such, Plaintiff’s claims are “patently without merit that the claim[s] require no meaningful consideration.” In any event, to the extent that Plaintiff’s ask the Court to declare that the Hawaiian Kingdom is a sovereign territory, the United States Supreme Court made clear over 130 years ago that “[w]ho is the sovereign, de jure or de facto, of a territory, is not a judicial, but a political, question, the determination of which by the legislative and executive departments of any government conclusively binds the judges….” “The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” “This principle has always been upheld by” the Supreme Court. Accordingly, the Court lacks subject matter jurisdiction, and Plaintiff’s claims against the Federal Defendants must be dismissed.
On June 15, 2022, the Hawaiian Kingdom filed a motion for reconsideration with Judge Kobayashi. For the first time in these proceedings, the Hawaiian Kingdom, in its motion, addressed the Lorenzo principle and who actually has the burden of evidence and what needs to be proven. In State of Hawai‘i v. Lorenzo, the Intermediate Court of Appeals admitted that its “rationale is open to question in light of international” by placing the burden on the defendant to provide evidence of the Hawaiian Kingdom’s existence as a State.
If the court applied international law, which they admitted they didn’t but could, there is a presumption that the Hawaiian Kingdom, an established and recognized State in the nineteenth century, continues to exist until there is rebuttable evidence to the contrary. In other words, when you apply international law it is not an issue of whether the Hawaiian Kingdom exists as a State, but rather an issue that the Hawaiian Kingdom no longer exists as a State under international law.
You start off with the Hawaiian Kingdom’s continued existence until an opposing party provides evidence that the United States extinguished the existence of the Kingdom. There is no such evidence, which is why the Permanent Court of Arbitration in 1999 verified the Hawaiian Kingdom’s continued existence as a “State” in Larsen v. Hawaiian Kingdom.
It is clear that the federal court does apply the State of Hawai‘i v. Lorenzo case when defendants assert that the Hawaiian Kingdom continues to exist. In 2002, U.S. District Court Judge David Ezra, in United States v. Goo, stated:
Since the Intermediate Court of Appeals for the State of Hawaii’s decision in Hawaii v. Lorenzo, the courts in Hawaii have consistently adhered to the Lorenzo court’s statements that the Kingdom of Hawaii is not recognized as a sovereign state by either the United States or the State of Hawaii. See Lorenzo; see also State of Hawaii v. French (stating that “presently there is no factual (or legal) basis for concluding that the [Hawaiian] Kingdom exists as a state in accordance with recognizing attributes of a state’s sovereign nature”) (quoting Lorenzo). This court sees no reason why it should not adhere to the Lorenzo principle.
In State of Hawai‘i v. Lorenzo, the Intermediate Court of Appeals explained, it “was incumbent on Defendant to present evidence supporting his claim. Lorenzo has presented no factual (or legal) basis for concluding that the Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature.” Because Lorenzo presented no evidence is why his appeal was denied. Affirming the jurisdictional issue and the burden of providing evidence, the State of Hawai‘i Supreme Court, in State of Hawai‘i v. Armitage, explained:
Lorenzo held that, for jurisdictional purposes, should a defendant demonstrate a factual or legal basis that the [Hawaiian Kingdom] “exists as a state in accordance with recognized attributes of a state’s sovereign nature[,]” and that he or she is a citizen of that sovereign state, a defendant may be able to argue that the courts of the State of Hawai‘i lack jurisdiction over him or her.
The operative word in Judge Ezra’s decision, like the Intermediate Court of Appeals, is “presently” because of the evidentiary burden not being met. Regarding this burden to provide evidence, Judge Ezra stated, “that Defendant has failed to provide any viable legal or factual support for his claim that as a citizen of the Kingdom he is not subject to the jurisdiction of the courts.”
The Lorenzo principle was applied by the federal court in 17 cases since 1993 and was addressing the fact that the defendants in these cases provided no evidence of the Hawaiian Kingdom’s existence as a State. That is why the decisions had the word “presently,” because it is still an open question. Not one of these cases stated what Judge Kobayashi stated in her Order that the issue is a political question.
While the Hawaiian Kingdom did not have the burden to provide evidence of its continued existence as a State pursuant to the Lorenzo principle, it did so throughout these proceedings from the start. Whether or not who has the burden to provide evidence of the Hawaiian Kingdom’s continued existence or its non-existence, the outcome is the same regarding the jurisdiction of the State of Hawai‘i court or the federal court. Simply stated, if the Hawaiian Kingdom exists then the courts have no jurisdiction.
The Lorenzo principle is called federal common law, which Black’s Law dictionary defines as a “body of decisional law developed by the federal courts.” In 1938, the U.S. Supreme Court, in Erie Railroad v. Tompkins, stated that federal courts have to apply the laws and decisions of State courts where they reside. As Judge Ezra explained, the Lorenzo principle stems from the State of Hawai‘i Intermediate Court of Appeals in State of Hawai‘i v. Lorenzo.
No State of Hawai‘i court applying the precedent of State of Hawai‘i v. Lorenzo in their decisions or the 17 federal court decisions applying the Lorenzo principle stated that the issue presents a political question. Judge Kobayashi’s statement that the issue is a political question has no basis in fact or in law.
On July 28, 2022, Judge Kobayashi denied the Hawaiian Kingdom’s motion. In her fourth Order she stated, “Plaintiff’s Motion fails to identify any new material facts not previously available, an intervening change in law, or a manifest error of law or fact. Although Plaintiff argues there are manifest errors of law in the 6/9/22 Order, Plaintiff merely disagrees with the Court’s decision.” She sums it up that it’s merely a disagreement.
It is clear that Judge Kobayashi’s opinion that the Hawaiian Kingdom does not exist flies in the face of an evidentiary burden in the Lorenzo principle that has and continues to be applied by the State of Hawai‘i courts since 1994 and the federal court since 1993. This is not a mere disagreement between Judge Kobayashi and the Hawaiian Kingdom, but rather a complete disregard of 29 years of court decisions that when a party is claiming the Hawaiian Kingdom continues to exist it must provide evidence of a factual or legal basis. Her decision is a clear “manifest error of law.”
This past Friday, the Hawaiian Kingdom filed a motion to certify for interlocutory appeal to the Ninth Circuit of a non-final order. Under Federal Rule of Civil Procedure 54(b), the Ninth Circuit Court can hear a non-final order if it involves a “controlling question of law as to which there is substantial ground for difference of opinion,” and “may materially advance the ultimate termination of the litigation.”
The question of law and the difference of opinion would be the Lorenzo doctrine, which Judge Kobayashi acknowledged when she stated, “Plaintiff merely disagrees with the Court’s decision.” The issue that it “may materially advance the ultimate termination of the litigation,” is that the Hawaiian Kingdom could move for summary judgement because none of the Federal Defendants contested the allegations in the amended complaint. A summary judgment is a judgment entered by a court for one of the parties without going to trial.
There is a two-step process for a non-final Order to be taken up on appeal before the Ninth Circuit Court. First, Judge Kobayashi will have to first certify the appeal with an Order, and, second, the Hawaiian Kingdom will have to file that Order with the Ninth Circuit for their acceptance of the appeal. If Judge Kobayashi denies the certification, the Hawaiian Kingdom will appeal on this same subject when the case has come to a close. This filing of the appeal now is so that resources and money won’t be wasted by continuing the proceedings in the district court, especially when everything centers on the Lorenzo doctrine.
The issue before the federal court in Hawai‘i is no longer its status as an Article II Occupation Court, but rather the Lorenzo principle and the issue of the Hawaiian Kingdom continued existence as a State. The transformation of the federal court into an Article II Occupation Court is incidental to the Lorenzo principle and the application of international law.