{"id":2926,"date":"2015-04-03T21:09:38","date_gmt":"2015-04-03T21:09:38","guid":{"rendered":"http:\/\/hawaiiankingdom.org\/blog\/?p=2926"},"modified":"2015-04-04T00:47:16","modified_gmt":"2015-04-04T00:47:16","slug":"in-1994-the-state-of-hawaii-asked-does-the-hawaiian-kingdom-continue-to-exist","status":"publish","type":"post","link":"https:\/\/hawaiiankingdom.org\/blog\/in-1994-the-state-of-hawaii-asked-does-the-hawaiian-kingdom-continue-to-exist\/","title":{"rendered":"In 1994 a State of Hawai\u2018i Court asked “Does the Hawaiian Kingdom Continue to Exist?”"},"content":{"rendered":"

What many people may not know is that it was the State of Hawai\u2018i Intermediate Court of Appeals<\/a> (ICA) in 1994 that established a landmark and precedent case where defendants have the burden to provide a factual or legal basis that would conclude the Hawaiian Kingdom continues to exist as a state when\u00a0they are challenging the jurisdiction of the trial courts. This case is State of Hawai\u2018i v. Lorenzo<\/em><\/a>. This has been\u00a0an open legal question and not a political question that has been before the courts in Hawai\u2018i for the past\u00a0twenty-one years. It was conclusively answered “yes” in another landmark case State of Hawai\u2018i v. English<\/em><\/a> during an evidentiary hearing on March 5, 2015.<\/p>\n

The Lorenzo<\/em> case was in response to the United States Congressional apology for the illegal overthrow of the Hawaiian Kingdom government on January 17, 1893\u2014U.S. Public Law 103-150<\/a>. In 1993, the Congress admitted to the United States\u2019 illegal overthrow of the Hawaiian government, but it did not admit to the overthrow of the Hawaiian Kingdom as a state. A government is not a state in international law. A state is a sovereign country that is a member of the family of nations, while a government is the physical body that exercises the sovereign authority of the country. State and country are synonymous, and history shows that while governments were\u00a0overthrown, it doesn\u2019t mean that countries were overthrown. Examples include the overthrow of the Japanese government by the Allied countries in 1945 during World War II, the overthrow of the Kuwaiti government by Iraq in 1990 during the Gulf War, and the overthrow of the Iraqi government in 2003 by the United States during the Iraq War.<\/p>\n

The Lorenzo<\/em> case addressed this very issue of whether or not the Hawaiian state still exists despite the admitted illegal overthrow of its government in 1893. There has been a common misunderstanding that treats the overthrow of the Hawaiian government synonymous with the overthrow of the Hawaiian state. The Lorenzo<\/em> case distinguishes the two and concluded that this is an open legal question. If the Hawaiian state continues to exist, then the State of Hawai\u2018i (USA) cannot legally exist in the Hawaiian Islands.<\/p>\n

In 1991, Anthony Lorenzo was tried in the First Circuit Court after being indicted on criminal charges of failing to render assistance after being involved in an automobile accident, driving without a license, and negligent injury. A pre-trial motion to dismiss the indictment was filed claiming that the State of Hawai\u2018i had no jurisdiction over him because the Hawaiian Kingdom still existed as a sovereign nation. The trial judge denied the motion to dismiss, which became the basis for the appeal to the ICA in 1994.<\/p>\n

\"Walter<\/a>Judge Walter Heen<\/a>, who authored the Lorenzo<\/em> judgment, wrote, \u201cThe essence of the lower court\u2019s decision is that even if, as Lorenzo contends, the 1893 overthrow of the Kingdom was illegal, that would not affect the court\u2019s jurisdiction in this case. Although the court\u2019s 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 defense of lack of jurisdiction. Therefore, we must affirm the judgment.\u201d Judge Heen concluded, \u201cit 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\u2019s sovereign nature. Consequently, his argument that he is subject solely to the Kingdom\u2019s jurisdiction is without merit, and the lower court correctly exercised jurisdiction over him.\u201d<\/p>\n

In the ICA decision, Judge Heen provided the definition of a state as \u201can entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other such entities.\u201d A careful reading of this definition clearly distinguishes the state from its government, where the \u201cstate\u201d is \u201cunder the control of its own government.\u201d The government is not the state.<\/p>\n

Judge Heen also stated, \u201cThe illegal overthrow leaves open the question whether the present governance system should be recognized, even though the illegal overthrow predated the United Nations Charter.\u201d The Lorenzo<\/em> case put forth a legal question in both State of Hawai\u2018i and Federal Courts in the Hawaiian Islands, as well as bringing in international law. This legal question has profound consequences that centers on whether the Hawaiian Kingdom as a state exists or not. It is international law that will determine the existence of the Hawaiian state, and not the laws of the United States.<\/p>\n

In the Nishitani v.<\/em> Baker<\/em><\/a> (1996), Judge Corrine Watanabe<\/a> of the ICA stated, \u201cIn retrospect, our statement in Lorenzo<\/em> that a criminal defendant has the burden of proving his or her defense of lack of jurisdiction may have generated some confusion. [Hawai\u2018i Revised Statutes] specifically provides that in a criminal case, a defendant may not be convicted unless the State proves beyond a reasonable doubt \u2018facts establishing jurisdiction.\u2019 The burden of proving jurisdiction thus clearly rests with the prosecution. However, where immunity claims are raised as a defense to jurisdiction, the burden is on the defendant to establish his or her immunity status.\u201d<\/p>\n

For the past twenty-one years, judges at the trial court level have consistently denied requests by defendants to dismiss either criminal or civil complaints filed in the State of Hawai\u2018i and Federal courts on the grounds that the Hawaiian Kingdom continues to exist. These judges have relied on the Lorenzo<\/em> case to deny the requests. When these decisions are taken on appeal, the ICA has routinely upheld the judgments by citing the Lorenzo<\/em> case, \u201cBecause the defendant had \u2018presented no factual (or legal) basis for concluding that the Kingdom exists as a state in accordance with recognized attributes of a state\u2019s sovereign nature,\u2019 we determined that the defendant had failed to meet his burden of proving his defense of lack of jurisdiction.\u201d<\/p>\n

The ICA cited the burden of the Lorenzo<\/em> case was not met by the defendants in a total of forty-one appeals between 1994 and 2014, and the Hawai\u2018i Supreme Court during this same period cited the same failure of defendants to provide a \u201cfactual (or legal) basis for concluding that the Kingdom exists as a state\u201d in six appeals. In total there have been forty-seven appeals that cited the landmark Lorenzo<\/em> case that was decided on October 20, 1994. What isn\u2019t accounted for, however, is how many trial courts denied defendants motions to dismiss that did not make it to an appeal.<\/p>\n

In all of these cases that came before the State of Hawai\u2018i appellate courts, the defendants provided evidence of some sort, but the Lorenzo<\/em> case required the defendants to provide evidence that is \u201cconclusive,\u201d and not just evidence. Conclusive is evidence that is \u201cindisputable\u201d between the prosecution or plaintiff and the defense. In order to overcome this hurdle of \u201cindisputability,\u201d which is a very high standard, the defendants need to have an evidentiary hearing where the rules of evidence are applied. It is in the evidentiary hearing that the defendants can introduce evidence that the Hawaiian Kingdom continues to exist as a state according to the Lorenzo<\/em> case. The prosecution or the plaintiff, however, cannot object to the evidence for the sake of objecting. They have to provide counter-evidence. If they object by providing counter-evidence then the evidence is considered \u201cdisputable,\u201d and therefore would not meet the burden of the Lorenzo<\/em> case where it has to be \u201cindisputable\u201d making the evidence \u201cconclusive\u201d that the Kingdom exists as a state.<\/p>\n

One way to get the evidence to be recognized as \u201cindisputable\u201d and \u201cconclusive\u201d would be to have the court take \u201cjudicial notice\u201d of the defendant\u2019s evidence under Rules 201 and 202 of the Hawai\u2018i Rules of Evidence. Black\u2019s Law Dictionary<\/em> (p. 848, 6th ed. 1990) defines judicial notice as the \u201cact by which a court recognizes the existence and truth of certain facts.\u201d Under Rule 201<\/a> is judicial notice of \u201cadjudicative facts,\u201d and Rule 202<\/a> is judicial notice of laws. When Judge Cardoza took judicial notice of Dr. Keanu Sai<\/a>\u2019s legal brief titled, \u201cThe Continuity of the Hawaiian State and the Legitimacy of the acting<\/em> Government of the Hawaiian Kingdom<\/a>,\u201d at the request of the defense during the evidentiary hearing on March 5, 2015 in State v. English<\/em><\/a> at the Second Circuit Court on the Island of Maui, it included both \u201cadjudicative facts\u201d and \u201claws.\u201d<\/p>\n

Throughout the evidentiary hearing<\/a>, the prosecution did not object to Dr. Sai\u2019s expert testimony that the Hawaiian Kingdom continues to exist as a state under international law, and it didn\u2019t object to the Judge taking judicial notice of Dr. Sai\u2019s brief that concludes the existence of the Hawaiian state. By not objecting during an evidentiary hearing, the prosecution was in agreement with the evidence being presented. What is extremely important during a criminal proceeding is the appearance of fairness and due process because the defendants are facing a judgment that could lead to imprisonment. In other words, the only way for the prosecution to object to the evidence presented by the defendants is that it must show counter evidence. Without counter evidence, the prosecution cannot object for the sake of objecting. To do so would be to violate the defendants\u2019 right to a fair trial and due process.<\/p>\n

State v. English<\/em> is a landmark case, because the judge took judicial notice of adjudicative facts and laws that concludes the Hawaiian Kingdom continues to exist as a state under international law. The evidentiary ruling made by Judge Cardoza during a fair evidentiary proceeding has \u201cconclusively\u201d determined that there is a \u201cfactual (or legal) basis for concluding that the Kingdom exists as a state.\u201d In 21 years of case law (common law), the English<\/em> case has finally and conclusively answered the legal question presented by Judge Heen in the Lorenzo<\/em> case in 1994.<\/p>\n

###<\/p>\n

The forty-one cases heard by the ICA using\u00a0the Lorenzo<\/em>\u00a0case are: State v. French<\/em>, 77 Haw. 222, 228, 883 P.2d 644, 650 (1994); Nishitani v. Baker,<\/em> 82 Hawai\u2018i 281, 289, 921 P.2d 1182, 1190 (1996); Chalon Int\u2019l of Haw. v. Makuaole<\/em>, 95 Haw. 243, 20 P.3d 676 (2000); State\u00a0v. Sherman<\/em>, 95 Haw. 243, 20 P.3d 676 (2000); State v. Joshua<\/em>, Haw. App. LEXIS 247 (2001); State v. Moore<\/em>, Haw. App. LEXIS 242 (2001); State v. Lindsey<\/em>, 98 Haw. 142, 44 P.3d 293 (2002); State v. Miyahira<\/em>, 98 Haw. 287, P.3d 754 (2002); State v. Keawemauhili<\/em>, 101 Haw. 330, 76 P.3d 829 (2003); Makapono Partners, LLC v. Simeona<\/em>, Haw. App. LEXIS 120 (2003); State v. Araujo<\/em>, 103 Haw. 508, 83 P.3d 771 (2004); Betsill Bros. Constr., Inc. v. Akahi<\/em>, Haw. App. LEXIS 218 (2004); State v. Keli\u2018ikoa<\/em>, 105 Haw. 92, 93 P.3d 1199 (2004); State v. Fergerstrom<\/em>, 106 Haw. 41, 101 P.3d 225 (2004); State v. Tanaka<\/em>, 106 Haw. 246, 103 P.3d 406 (2004); State v. Spinney<\/em>, 106 Haw. 389, 105 P.3d 266 (2005); State v. Ball<\/em>, 113 Haw. 507, 155 P.3d 690 (2007); State v. Steffey<\/em>, Haw. App. LEXIS (2008); State v. Nakatsu<\/em>, Haw. App. LEXIS (2008); State v. Ampong<\/em>, 120 Haw. 255, 203 P.3d 675 (2009); State v. Makekau<\/em>, 121 Haw. 202, 216 P.3d 128 (2009); State v. Rodenhurst<\/em>, Haw. App. LEXIS 588 (2010); State v. Craig-Rodenhurst<\/em>, Haw. App. LEXIS 664 (2011); State v. Kaluau<\/em>, 125 Haw. 251, 258 P.3d 948 (2011); RMS Residential Properties, LLC v. Valdez<\/em>, 125 Haw. 475, 264 P.3d 53 (2011); Burgo v. State, <\/em>127 Haw. 240, 277 P.3d 334 (2012); State v. Au, <\/em>128 Haw. 476, 290 P.3d 546 (2012); State v. Kawa\u2018auhau, <\/em>128 Haw. 477, 290 P.3d 547 (2012); Federal National Mortgage Association v. Bise, <\/em>129 Haw. 268, 297 P.3d 1124 (2013); Wells Fargo Bank N.A. v. Armitage,<\/em> 129 Haw. 295, 298 P.3d 1059 (2013); Federal Home Loan Mortgage Corporation v. Griep, <\/em>129 Haw. 425, 301 P.3d 1266 (2013); Deutsche Bank National Trust Company v. Pa\u2018a,<\/em> 130 Haw. 302, 309 P.3d 970 (2013); State v. Armitage, <\/em>129 Haw. 425, 301 P.3d 1266 (2013); Federal National Mortgage Association v. Duarte, <\/em>129 Haw. 452, 303 P.3d 1229 (2013); First Hawaiian Bank v. Kamakea, <\/em>129 Haw. 452, 303 P.3d 1229 (2013); The Bank of New York Mellon v. Velez,<\/em> 129 Haw. 426, 301 P.3d 1267 (2013); U.S. Bank National Association v. Shim-Palama,<\/em> 129 Haw. 427, 301 P.3d 1268 (2013); State v. Palama,<\/em> 129 Haw. 428, 301 P.3d 1269 (2013); Federal National Mortgage Association v. Barros,<\/em> 129 Haw. 449, 302 P.3d 717 (2013); State v. Kana\u2018ele,<\/em> 132 Haw. 518, 323 P.3d 162 (2014); State v. Kanaka\u2018ole,<\/em> 132 Haw. 518, 323 P.3d 162 (2014).<\/p>\n

The six cases heard by the Supreme Court using\u00a0the Lorenzo<\/em> case are: State v. Lee,<\/em> 90 Haw. 130, 976 P.2d 444 (1999); State v. Sinagoga,<\/em> Haw. LEXIS 135 (2002); State v. Fergerstrom<\/em>, Haw. LEXIS 254 (2004); State v. Rodenhurst<\/em>, Haw. LEXIS 280 (2010); State v. Kaulia<\/em>, 128 Haw. 479, 291 P.3d 377 (2013); State v. Armitage<\/em>, 132 Haw. 36, 319 P.3d 1044 (2014).<\/p>\n","protected":false},"excerpt":{"rendered":"

What many people may not know is that it was the State of Hawai\u2018i Intermediate Court of Appeals (ICA) in 1994 that established a landmark and precedent case where defendants have the burden to provide a factual or legal basis … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,5],"tags":[],"class_list":["post-2926","post","type-post","status-publish","format-standard","hentry","category-international-law","category-national"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/p31YBQ-Lc","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts\/2926","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/comments?post=2926"}],"version-history":[{"count":14,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts\/2926\/revisions"}],"predecessor-version":[{"id":2941,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts\/2926\/revisions\/2941"}],"wp:attachment":[{"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/media?parent=2926"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/categories?post=2926"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/tags?post=2926"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}