Judge Foley wrote
the Summary Disposition Order, signed also by Judges Fujise and Leonard. Defendant was convicted in district court of of Driving While License Suspended or Revoked and Driving Without No Fault Insurance. On appeal, Defendant's court-appointed counsel stated in the opening brief
that he is providing ineffective assistance of counsel on appeal as he "is incapable of properly asserting the 'Hawaiian Sovereignty' Defenses of the Defendant, since he does not agree with the Defendant's political position[.]"
The court noted that counsel did not maintain that Defendant's sovereignty claim was frivolous or "so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client" (citing the Hawai'i Rules of Professional Conduct) and ordered counsel to provide supplemental briefing presenting Defendant's sovereignty defenses. The supplemental brief stated
The Hawaiian sovereignty defense in this particular case stems from the fact that the Appellant stated he was a citizen of the Hawaiian Kingdon and not bound by the laws of the State of Hawaii and that the vehicle was registered with the Reinstated Hawaiian Kingdom....The essence of [Defendant's] Hawaiian sovereignty defense assertion is that the Kingdom of Hawaii exists as the only legal entity capable of allowing him to drive.
Ultimately the defense was unavailing as the court did as it routinely does in sovereignty appeals of driving without license citations and quoted the oft' quoted language from
State v. Fergerstrom, 106 Hawai'i 43, 55, 101 P.3d 652, 664 (App. 2004):
the State of Hawai`i has lawful jurisdiciton over all persons operating motor vehicles on public roads or highways within the State of Hawai`i. Persons claiming to be citizens of the Kingdom of Hawai`i and not of the State of Hawai`i are not exempt from the laws of the State of Hawai`i applicable to all persons (citizens and non-citizens) operating motor vehicles on public roads and highways within the State of Hawai`i.
8 comments:
Interesting. What is up with the defense bar? It seems the if the local courts have to actually order your defense lawyers to present constitutional defenses, that the defense bar is failing.
Man I don't want the guy who had to get ordered to present my defense defending me!!!!
It's a fundamental principle that every defendant is entitled to be represented by an attorney, and the attorney is obligated to zealously represent his client. That applies even to defendants or their actions which might be regarded as reprehensible or immoral. Surely we recall that future President John Adams honorably served as attorney representing the British soldier who killed American protesters in the "Boston Massacre."
In the case of the Hawaiian sovereignty defense, however, there's a special problem. Every attorney admitted to the Hawaii Bar takes an oath to support and defend the Constitution of the United States, and the Constitution of the State of Hawaii. It would violate that oath for an attorney to use a sovereignty defense which would assert that the U.S. or State of Hawaii lack jurisdiction in Hawaii. I think the way to proceed would be for the judge to allow defendant to choose a spokesperson to act as attorney even though the spokesperson is not a licensed attorney. Or else use Hayden Burgess (alias Poka Laenui), a sovereignty activist who is a licensed attorney but seems to feel no shame about violating his oath to support the federal and state Constitutions.
"It would violate that oath for an attorney to use a sovereignty defense which would assert that the U.S. or State of Hawaii lack jurisdiction in Hawaii."
The problem with this assertion is that it is absolutely false. Lawyers go to court and allege a lack of jurisdiction all the time. See the Jendrusch and Wheeler cases. Moreover, it is the Hawaii Constitution that specifically guarantees special Native Hawaiian rights (Article XII Sec VII) - so how can you claim that a lawyer violates his oath to defend the constitution by arguing directly from the constitution?
So while you say it would violate the attorney oath to make such an argument, the Hawaii appeals court is ORDERING attorney's to do so - and one can infer that the Courts are making such orders to disabuse Hawaii attorneys of the very mindset that you are espousing.
And what about the recent Pratt case? Did the lawyer violated the constitution there too - cause it sure looks like he's gonna win.
"The NHEA expressly declares that “Congress does not extend services to Native Hawaiians because of their race, but because of their unique status as the indigenous people of a once sovereign nation as to whom the United States has established a trust relationship.” 20 U.S.C. § 7512(12)(B)."
Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate 470 F.3d 827, 856 (C.A.9 (Hawai‘i),2006)
I'm curious what the outcome would have been had the attorney argued not that he didn't agree with the defense but that in his professional judgment the defense was frivolous.
I know this is an old post page but as I did, maybe others will scroll down.
Iʻm gaining some eye openers on this site:
Charley Foster is attorney, yes? Yet he alludes to the possibility that the driving issue for sovereigns/Hawaii nationals may be frivolous; perhaps Mr. Foster might brush up on the aspect of the right to travel as it relates to a Hawaii national and international laws.
Then comes Mr. Conklin with his proclamation that a U.S. attorney would violate his oath to defend one claiming to have a sovereignty defense. The mere fact that the U.S. jurisdiction in Hawaii is in question should enlighten you. There is no violation of oath especially if it is a political question and if a defendant is before a U.S. court he may argue any defense he so chooses. That old plantation mentality does not bode well in the world of jurisprudence or the rule of law for that matter. And once the matter is resolved, which it will be, we will come to realize that U.S. attorneys may want to pack up their limited little degrees and go practice where they are licensed to practice: not in a foreign country, which Hawaii is to any U.S. national.
Checks & Balances, I appreciate your comment. Perhaps understandably, you missed the point of my comment. In fact I do understand the various sovereignty arguments and I use them in court when defending Native Hawaiians who wish to assert sovereignty defenses.
Note that in the post I pointed out that the court mentioned that the attorney did not claim the defense was frivolous. Rather, the attorney said he "does not agree with the Defendant's political position." Not agreeing with a defendant's political position is not a valid reason to deny a defendant his defense. However, deeming a defense "frivolous" IS a valid reason to refuse to put on the defense.
So my question was, what would the court have done had the attorney, instead of saying he didn't like the politics of the defense, instead said the defense was frivolous? Would the court have found that reason to be acceptable?
It's a question that comes naturally to lawyers such as myself who have no problem asserting sovereignty defenses in cases such as the one under discussion.
Thank you for clarification.
I donʻt think the court could have or would have accepted frivolous.
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