On the convicted child abuser granted bail pending appeal - the appeal to sovereignty

Circuit Judge Virginia Crandall yesterday granted convicted and sentenced child abuser Rita Makekau's motion that she be allowed to remain free on bail pending appeal. According the The Honolulu Advertiser -

The appeal is based on her belief that state courts have no jurisdiction over her because she is a Native Hawaiian.

Makekau calls herself "her Highness Rita Kulamika Makekau, Royal Minister of Foreign Affairs for the Hawaiian Kingdom Government," a sovereignty group that has been protesting since May on the grounds of 'Iolani Place, questioning the authority of state and federal governments in Hawai'i.

This has Honolulu City & County Prosecutor, Peter Carlisle shaking his head -

"The case law is incredibly explicit that the only time on an appeal that somebody should be released on bail is whether there is a meritorious claim," [Carlisle] said yesterday at a news conference. "And no matter what you think about sovereignty, that is not a meritorious claim for somebody who has committed a crime under the laws of Hawaii."

Under the case law referred to by Carlisle, a defendant in Makekau's position who seeks to be released on bail pending an appeal of her conviction must show among other things that the appeal turns on "a substantial question of law or fact." State v. Cullen, 946 P.2d 955, 86 Haw. 1 (1997).

To release a convicted and sentenced defendant on bail, the court "must find that the significant question at issue [on appeal] is one which is either novel, which has not been decided by controlling precedent, or which is fairly doubtful."

The argument that state courts have no jurisdiction over her because she is a Native Hawaiian is none of those things. Looking through the cases, it appears that claims that the state or the court lack jurisdiction are often raised and are routinely and summarily dismissed.

It is well settled as far as Hawaii courts are concerned that the state has jurisdiction to enforce its criminal and traffic laws within the boundaries of the state, regardless of whether the defendant in question is Native Hawaiian and claims immunity from such jurisdiction. It is also well settled that the state’s criminal jurisdiction encompasses all areas within the territorial boundaries of the State of Hawai`i, including on Hawaiian home lands. (See the case sites listed at the end of this post).

It would be fascinating to read Judge Crandall's findings on the "substantial question" issue. Personally, I don't see how a jurisdictional challenge grounded in native sovereignty can pass the test. Although technically the question will be moot by the time the appellate court decides the appeal, there exists an exception to the mootness doctrine that arises with respect to matters affecting the public interest. It would be interesting if Carlisle raised the issue on cross appeal to see whether and what the court might say about it.

On native sovereignty challenges to state court jurisdiction, see, e.g. State v. Jim, 105 Hawai`i 319, 330, 97 P.3d 395, 406 (App. 2004) (”the state’s criminal jurisdiction encompasses all areas within the territorial boundaries of the State of Hawai`i”); State v. Fergerstrom, 106 Hawai`i 43, 55, 101 P.3d 652, 664 (App. 2004)(holding that the State has the jurisdiction and authority to enforce traffic laws within the State, including against “[p]ersons claiming to be citizens of the Kingdom of Hawai`i and not of the State of Hawai`i”); State v. Jim, 80 Hawai`i 168, 171-172, 907 P.2d 754, 757-758 (1995) (holding that the exercise of police powers on Hawaiian home lands does not require the consent of Congress); State v. Lee, 90 Hawaii 130, 976 P.2d 444 (1999); State v. Lorenzo, 77 Hawaii 219, 883 P.2d 641 (App. 1994);State v. Keliikoa, 93 P.3d 1199, 105 Hawai’i 92 (Haw.App. 07/21/2004), etc.