A modest proposal for a Hawaii traffic court sovereignty defense

In the comments to an earlier post about sovereignty arguments in traffic court, I was invited (or challenged?) to "figure out an approach for Kanaka that could win." It's a tough assignment, but I've been giving it some thought.

Back in 1994 the Hawaii Court of Appeals heard the case of Anthony Lorenzo who had been convicted of driving without a license, negligent injury, and failing to render assistance after being involved in an automobile accident. State v. Lorenzo, 883 P.2d 641, 77 Haw. 219 (Haw.Ct.App. 1994).

Lorenzo had made a motion to dismiss in the lower court arguing that the Kingdom of Hawaii was recognized as an independent sovereign nation by the United States in numerous bilateral treaties; the Kingdom was illegally overthrown in 1893 with the assistance of the United States; the Kingdom still exists as a sovereign nation; he is a citizen of the Kingdom; therefore, the courts of the State of Hawaii have no jurisdiction over him.

The lower court denied the motion, saying, "Although the Court respects Defendant's freedom of thought and expression to believe that jurisdiction over the Defendant for the criminal offenses in the instant case should be with a sovereign, Native Hawaiian entity, like the Kingdom of Hawaii, such an entity does not preempt nor preclude jurisdiction of this court..."

In other words, according to the appellate court, "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."

Then the appellate court announced that that's not really true, calling the lower court's rationale "open to question in light of international law."

What does that mean? The court explained by way of a footnote: "A state has an obligation not to recognize or treat as a state an entity that has attained the qualifications for statehood as a result of a threat or use of armed force in violation of the United Nations Charter. Restatement (Third) of the Foreign Relations Law of the United States § 202(2). The illegal overthrow leaves open the question whether the present governance system should be recognized, even though the illegal overthrow predated the United Nations Charter."

Nevertheless, the appellate court explained, the lower court's decision was correct because Lorenzo "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."

This of course raises the tantalizing prospect of what then might the court do if a defendant did establish as a matter of fact (or law) that the Kingdom exists as a state in accordance with recognized attributes of a state's sovereign nature?

There's no copyrighting of legal arguments, but I want to acknowledge that this is what I'm almost sure attorney Dan Hempey and his defendant clients in the Kaho'olawe trespass case are up to. They spent a lot of time with an expert witness on the stand covering "the essential attributes of sovereign statehood" listed in another footnote to the Lorenzo decision.

So what would a court do if a defendant was able to establish the existence of the Kingdom? Would the court announce its own lack of jurisdiction? I dunno. Doubt it. But maybe that's where the Hawaii Supreme Court's ceded land decision could be stretched to accommodate the facts of a sovereignty challenge.

The ceded lands court enjoined sale of the lands until settlement of "unrelinquished claims" growing out of the events of the overthrow of the Kingdom. Well, native sovereignty is also an "unrelinquished claim" arising from the same events. In fact, it could turn out that in the end the state loses its sovereignty in the ceded lands, or parts thereof, depending on what settlement ensues. Why not also enjoin the state's exercise of sovereignty over natives until all those issues are sorted out?

Of course this strategy depends on how the Hawaii Supreme Court handles the remand from the SCOTUS of the ceded lands case. If the court says, "never mind," and backs off its injunction, then this bet is off. But if it sustains the injunction on state law foundations, then why not press any and all claims contingent on the outcome of a future settlement?

That's my idea. I admit, it has its weaknesses. (For one thing, it would leave an entire class of people, or, if applied to ceded lands, a number of geographic locations, devoid of any criminal jurisdiction at all.) I invite all to improve on it or rip it apart or maybe just distinguish it in principle from the ceded lands decision.