{"id":6140,"date":"2022-08-25T11:47:49","date_gmt":"2022-08-25T21:47:49","guid":{"rendered":"https:\/\/hawaiiankingdom.org\/blog\/?p=6140"},"modified":"2022-08-25T11:47:50","modified_gmt":"2022-08-25T21:47:50","slug":"update-hawaiian-kingdom-files-motion-for-evidentiary-hearing-to-compel-the-federal-defendants-to-prove-the-hawaiian-kingdom-does-not-exist-according-to-the-lorenzo-principle","status":"publish","type":"post","link":"https:\/\/hawaiiankingdom.org\/blog\/update-hawaiian-kingdom-files-motion-for-evidentiary-hearing-to-compel-the-federal-defendants-to-prove-the-hawaiian-kingdom-does-not-exist-according-to-the-lorenzo-principle\/","title":{"rendered":"UPDATE: Hawaiian Kingdom files Motion for Evidentiary Hearing to Compel the Federal Defendants to Prove the Hawaiian Kingdom Does Not Exist According to the Lorenzo Principle"},"content":{"rendered":"\n

On August 15, 2022, Judge Leslie Kobayashi filed an Order<\/a><\/strong> denying the Hawaiian Kingdom\u2019s request<\/a><\/strong> to allow the Ninth Circuit to review her previous Order dated July 28, 2022, denying the Hawaiian Kingdom\u2019s motion to reconsider her decision. Federal rules allow a party to file a motion for reconsideration within 10 days of the Order. In her August 15 Order, she stated:<\/p>\n\n\n\n

\u201cHere, whether the Hawaiian Kingdom continues to exist as a sovereign and independent state is not a controlling question of law. \u2018The Ninth Circuit, this court, and Hawaii state courts have rejected arguments asserting Hawaiian sovereignty.\u2019 Although the resolution of whether the Hawaiian Kingdom exists as a sovereign and independent state could, theoretically, materially affect the outcome of litigation, the question presented does not rise to the level of an exceptional case warranting departure from the congressional directive to grant interlocutory appeals sparingly.\u201d<\/p><\/blockquote>\n\n\n\n

The Hawaiian Kingdom does not agree with Judge Kobayashi that the Hawaiian Kingdom\u2019s existence is not a controlling question of law that would bind the Court. On August 24, 2022, the Hawaiian Kingdom filed a motion<\/a><\/strong> for Judge Kobayashi to reconsider her decision on the grounds of judicial estoppel<\/a><\/strong>, and in accordance with the Lorenzo<\/em> principle to schedule an evidentiary hearing in order to compel the Federal Defendants to prove that the Hawaiian Kingdom no longer exists as a State. According to the Ninth Circuit, in Rissetto v. Plumbers & Steamfitters Local 343<\/em>, judicial estoppel prevents \u201ca party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position.\u201d<\/p>\n\n\n\n

In its recent filing, the Hawaiian Kingdom drew attention to the United States’ position in support of the Lorenzo<\/em> principle in United States v. Goo<\/a><\/strong><\/em> in 2002 where it prevailed, and then in these proceedings regarding the Lorenzo<\/em> principle they act as if it never existed. The Lorenzo<\/em> principle stems from the Hawai\u2018i Intermediate Court of Appeals (ICA) case State of Hawai\u2018i v. Lorenzo<\/a><\/strong><\/em> that centered on the subject of whether the Hawaiian Kingdom as a State still exists.<\/p>\n\n\n\n

This case not only placed the burden of proof that the Kingdom still exists on the defendant, but it also separated the Hawaiian Kingdom from the native Hawaiian sovereignty movement and nation building. In 2014, the Hawai\u2018i Supreme Court, in State of Hawai\u2018i v. Armitage<\/a><\/strong><\/em>, explained:<\/p>\n\n\n\n

\u201cPetitioners\u2019 theory of nation-building as a fundamental right under the ICA\u2019s decision in Lorenzo does not appear viable. Lorenzo held that, for jurisdictional purposes, should a defendant demonstrate a factual or legal basis that the [Hawaiian Kingdom] \u2018exists as a state in accordance with recognized attributes of a state\u2019s sovereign nature[,]\u2019 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\u2018i lack jurisdiction over him or her. Thus, Lorenzo does not recognize a fundamental right to build a sovereign Hawaiian nation.\u201d<\/p><\/blockquote>\n\n\n\n

The ICA reiterated that a defendant has to provide evidence of the Hawaiian Kingdom\u2019s existence as a State and not just say it exists. In\u00a0State of Hawai\u2018i v.<\/em>\u00a0Araujo<\/em><\/a><\/strong>, the ICA stated:<\/p>\n\n\n\n

Because Araujo has not, either below or on appeal, \u201c\u2018presented any 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\u201d (citing\u00a0Lorenzo<\/em>, 77 Hawai\u2018i at 221, 883 P.2d at 643), his point of error on appeal must fail.<\/p><\/blockquote>\n\n\n\n

The Lorenzo<\/em> court, however, also acknowledged that it may have misplaced the burden of proof and what needs to be proven. It stated, \u201calthough 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.\u201d <\/p>\n\n\n\n

Because international law provides for the presumption<\/a><\/strong> of the continuity of the State despite the overthrow of its government by another State, it shifts the burden of proof and what is to be proven. According to Judge Crawford, there \u201cis a presumption that the State continues to exist, with its rights and obligations despite a period in which there is no, or no effective, government.\u201d Judge Crawford also stated that belligerent occupation \u201cdoes not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.\u201d <\/p>\n\n\n\n

In other words, under international law, it is presumed the Hawaiian Kingdom still exists as a State despited its government being militarily overthrown by the United States on January 17 1893. Addressing the presumption of the continuity of the German State after hostilities ceased in Europe during the Second World War, Professor Brownlie explains:<\/p>\n\n\n\n

\u201cThus, after the defeat of Nazi Germany in the Second World War the four major Allied powers assumed supreme power in Germany. The legal competence of the German state [its independence and sovereignty] did not, however, disappear. What occurred is akin to legal representation or agency of necessity. The German state continued to exist, and, indeed, the legal basis of the occupation depended on its continued existence.\u201d<\/p><\/blockquote>\n\n\n\n

\u201cIf one were to speak about a presumption of continuity,\u201d explains Professor Craven, \u201cone would suppose that an obligation would lie upon the party opposing that continuity to establish the facts substantiating its rebuttal. The continuity of the Hawaiian Kingdom, in other words, may be refuted only by reference to a valid demonstration of legal title, or sovereignty, on the part of the United States, absent of which the presumption remains.\u201d A “valid demonstration of legal title” would be an international treaty where the Hawaiian Kingdom ceded itself to the United States. No such treaty, except for the “Big Lie” that Hawai\u2018i is a part of the United States.<\/p>\n\n\n\n

Up until now, the State of Hawai\u2018i courts and the federal court in Honolulu have been placing the burden on the defendants to prove the Kingdom still exists. Whether the burden is to prove the kingdom\u2019s existence or to prove it doesn\u2019t exist, it is a controlling law that binds the State of Hawai\u2018i courts.<\/p>\n\n\n\n

The Lorenzo<\/em> case had become a precedent case and was cited by the Hawai\u2018i Supreme Court in 8 cases, and by the ICA in 45 cases. The latest Hawai\u2018i Supreme Court\u2019s citation of Lorenzo<\/em> was in 2020 in State of Hawai\u2018i v. Malave<\/em>. The most recent citation of Lorenzo<\/em> by the ICA was in 2021 in Bank of N.Y. Mellon v. Cummings<\/em>. Since 1994, Lorenzo<\/em> had risen to precedent, and, therefore, is common law<\/a><\/strong>. Federal law mandates federal courts to apply the common law of the State where the court is. <\/p>\n\n\n\n

U.S. District Judge David Ezra, who was the presiding judge in United States v. Goo<\/em>, stated that he was adhering to the Lorenzo<\/em> principle and that the defendant did not meet his burden of proof. The defendant was claiming that \u201che is immune from suit or judgment in any court of the United States or the State of Hawaii. Defendant contends that the State is illegally occupying the Kingdom, and thus the laws of the Kingdom should govern his conduct rather than any state or federal laws. Therefore, Defendant opposes an order from a federal court forcing him to pay \u201cforeign\u201d taxes through a foreclosure mechanism.\u201d<\/p>\n\n\n\n

In these proceedings, the Federal Defendants act as if there is no such thing as the Lorenzo<\/em> principle, which is contrary to their position as the United States in the Goo<\/em> case. The Federal Defendants managed to convince Judge Kobayashi that the case should be dismissed because the issue of whether the kingdom exists is a political question<\/a><\/strong> which does not allow the court to have jurisdiction. Without jurisdiction it wouldn’t be able to have an evidentiary hearing. <\/p>\n\n\n\n

In none of the 53 cases that cited the Lorenzo<\/em> principle did the courts invoke the political question doctrine. Even in the 17 federal cases that applied the Lorenzo<\/em> principle, which includes Goo<\/em>, did the courts invoke the political question doctrine. All stated the defendants failed to provide any evidence that the Hawaiian Kingdom still exists as a State. <\/p>\n\n\n\n

The Lorenzo<\/em> principle gives the State of Hawai\u2018i and the federal court limited jurisdiction to hear the evidence. If there is no evidence that the Hawaiian Kingdom still exists it maintains its jurisdiction. But if evidence shows that the Hawaiian Kingdom still exists, then the courts has no jurisdiction. In these proceedings, when the Federal Defendants fail to provide evidence that the Kingdom no longer exists, the Court will have to transform itself into an Article II Occupation Court in order to have jurisdiction over the complaint filed by the Hawaiian Kingdom.<\/p>\n\n\n\n

The issue is not a \u201cpolitical question\u201d but rather a \u201clegal question\u201d that the court has jurisdiction in order to hear the evidence. In another case that came before the ICA, in State of Hawai\u2018i v. Lee<\/em>, ICA stated that the Lorenzo<\/em> court \u201csuggested that it is an open legal question whether the \u2018Kingdom of Hawai\u2018i\u2019 still exists.\u201d<\/p>\n\n\n\n

The Federal Defendants are attempting to make an end run on the football field and argue that the Hawaiian Kingdom cannot tackle them. It is an attempt by the Federal Defendants to overcome a difficulty without directly confronting it, which is precisely why judicial estoppel applies and judicial integrity is the primary function of judicial estoppel. Here is what federal courts of appeal say regarding judicial estoppel:<\/p>\n\n\n\n

According to the First Circuit, judicial estoppel is to be used \u201cwhen a litigant is \u2018playing fast and loose with the courts,\u2019 and when \u2018international self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.\u2019\u201d<\/p>

The Second Circuit states that judicial estoppel \u201cis supposed to protect judicial integrity by preventing litigants from playing fast and loose with courts, thereby avoiding unfair results and unseemliness.\u201d<\/p>

The Third Circuit established a requirement that \u201cthe party changed his or her position in bad faith, i.e., in a culpable manner threatening to the court\u2019s authority and integrity.\u201d<\/p>

The Fourth Circuit applies judicial estoppel to prevent litigants from \u201cblowing hot and cold as the occasion demands.\u201d<\/p>

According to the Fifth Circuit, \u201clitigants undermine the integrity of the judicial process when they deliberately tailor contradictory (as opposed to alternate) positions to the exigencies of the moment.\u201d<\/p>

The Sixth Circuit states that judicial estoppel \u201cpreserves the integrity of the courts by preventing a party from abusing the judicial process through cynical gamesmanship, achieving success on one position, then arguing the opposite to suit an exigency of the moment.\u201d<\/p>

The Seventh Circuit seeks to have judicial estoppel \u201cto protect the judicial system from being whipsawed with inconsistent arguments.\u201d<\/p>

The Eighth Circuit says, \u201cthe purpose of judicial estoppel is to protect the integrity of the judicial process. As we read the caselaw, this is tantamount to a knowing misrepresentation to or even fraud on the court.\u201d<\/p>

The Ninth Circuit allows judicial estoppel to preclude \u201ca party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position.\u201d<\/p>

Observing that for judicial estoppel to apply, according to the Eleventh Circuit, the \u201cinconsistencies must be shown to have been calculated to make a mockery of the judicial system.\u201d<\/p><\/blockquote>\n\n\n\n

This inconsistent position taken by the Federal Defendants has placed the Hawaiian Kingdom in an unfair position. In its closing statement, the Hawaiian Kingdom stated:<\/p>\n\n\n\n

\u201cIf the Federal Defendants are confident that \u201cPlaintiff\u2019s claim and assertions lack merit,\u201d then let them make their case that the Hawaiian Kingdom \u201cceases to be a state\u201d under international law pursuant to the Lorenzo<\/em> principle that the Goo<\/em> court adhered to. But they cannot prevail by having the Court muzzle the Plaintiff in its own case seeking justice under the rule of law.\u201d<\/p><\/blockquote>\n\n\n\n

The United States knows that over a century of lies is coming to an end because there never was any evidence that the Hawaiian Kingdom no longer exists as a State. As Sir Walter Scott wrote<\/a><\/strong> in 1808, \u201cOh, what a tangled web we weave when first we practice to deceive.<\/em>\u201d It means that when you act dishonestly you are initiating problems, and a domino structure of complications, which will eventually run out of control.<\/p>\n","protected":false},"excerpt":{"rendered":"

On August 15, 2022, Judge Leslie Kobayashi filed an Order denying the Hawaiian Kingdom\u2019s request to allow the Ninth Circuit to review her previous Order dated July 28, 2022, denying the Hawaiian Kingdom\u2019s motion to reconsider her decision. Federal rules … 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":[7,5],"tags":[],"class_list":["post-6140","post","type-post","status-publish","format-standard","hentry","category-education","category-national"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/p31YBQ-1B2","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts\/6140","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=6140"}],"version-history":[{"count":12,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts\/6140\/revisions"}],"predecessor-version":[{"id":6152,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts\/6140\/revisions\/6152"}],"wp:attachment":[{"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/media?parent=6140"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/categories?post=6140"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/tags?post=6140"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}