ICA orders appointed counsel to brief Hawaii Sovereignty defense

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.

Prosecutorial Misconduct

Instructive case notes from Jill Paperno, Second Assistant Monroe County Public Defender in New York Criminal Defense Blog -

So, to sum, consider whether the prosecutor's arguments and conduct are:
Bolstering
Vouching
Injecting his/her opinion
Unfairly using strategic delay to disadvantage the defense
Crossing on matters outside the Sandoval
Arguing about defendant's character
Inflaming passion
Inflaming prejudice
Seeking to stir sympathy of the jury
Attempting to offer evidence through improper refreshing
Mischaracterizing/misstating the evidence
Testifying as an unsworn witness
Usurping the province of the jury

The anatomy of State v. Pratt: Native Hawaiian traditional practice rights from the district court through oral arguments before the supreme court

I have a guest post this morning over at Record on Appeal about State v. Pratt, the case currently before the Hawaii Supreme Court involving customary, traditional native Hawaiian practice rights. It follows the case from the district court through the ICA and oral arguments before the Supreme Court. Check it out.

OHA to fund treatises on native Hawaiian burials and traditional and customary native Hawaiian rights

From a University of Hawaii press release -

The Office of Hawaiian Affairs (OHA) finalized an agreement with Ka Huli Ao Center for Excellence in Native Hawaiian Law at the University of Hawai‘i at Mānoa’s William S. Richardson School of Law to produce legal primers on issues of significance to Native Hawaiians.

OHA has committed $62,000 for Ka Huli Ao to research, publish, and distribute two primers: one on iwi kūpuna (Native Hawaiian burials) and a second on traditional and customary Native Hawaiian rights. Once the materials are completed, Ka Huli Ao will collaborate with grassroots groups on Kaua‘i, O‘ahu, Maui, Moloka‘i, and Hawai‘i Island to facilitate community outreach meetings and distribute copies of the primers.

Canada surpasses Japan as biggest investor in Hawaii residential real estate

(Hong Kong is number three)

...according to David Buck.

3 reasons driving foreign investment to Hawaii

1. Depressed prices from the peak of the market
2. Buyers in the countries mentioned above have a ton of equity in their home and want to diversify
3. The exchange rate with the U.S. dollar is the best it’s been in a long time for foreign investment

The difference between now and then is the Japanese back then were willing to pay 25% more than domestic buyers for most properties. Although the Canadians are whipping out their checkbooks, they are not “overpaying”

Local media on Pratt Supreme Court arguments

Michael Levine in Civil Beat - Hawaiian Rights Fight Lands at Supreme Court

Ken Kobayashi in Star Advertiser - Court wrestles with cultural practices case

Challenging Prohibition of Non-Lawyer Firm Ownership

Hawaii, along with most other states, has a rule of professional conduct for lawyers that prohibits practicing with or in the form of a professional corporation or association if a nonlawyer owns any interest in or is a corporate director or officer of the entity. The rule also prohibits sharing legal fees with non-lawyers.

The American Bar Association Commission on Ethics is currently seeking comments on a newly released Issues Paper entitled "Alternative Business Structures" on whether to alter the model ethics rules to allow some kind of joint ownership of law firms.

And here's a piece about a firm that is challenging the rule through litigation, suing in three states under theories that the rule violates among other things the commerce clause, the due process clause, the takings clause, the equal protection clause and the First Amendment of the U.S. Constitution.

More on Hawaii's new foreclosure law

From Housing Wire -

...a sweeping foreclosure bill...that allows homeowners to move nonjudicial foreclosure actions into court as judicial proceedings.

It also enacts a face-to-face mediation program for homeowners facing foreclosure, ends dual tracking, requires mortgage servicers to be licensed and to maintain a physical presence in the state and reins in homeowners associations.

...

The law provides details on everything from the licensing of servicers to what constitutes proper foreclosure notice or an appropriate auction of property.

...

The bill also provides property owners governed by a homeowners association or condominium association 60 days to cure HOA defaults after being notified of the default in person or by certified mail before a foreclosure action could commence.

It also instructs HOAs "not to reject a reasonable payment plan," described as at a minimum the current maintenance fee and some amount owed on the past due balance.

Time to shift sectors?

If you're into that sort of thing (we lawyers with self-directed IRAs, for instance), here's an interesting analysis.

Goodwin Liu fails to get sufficient cloture votes for potential appointment to 9th U.S. Circuit Court of Appeals

USA Today -

The sticking point for Liu's nomination, first made by Obama in early 2010, has been his past statements and writings, in which he has suggested the Constitution be more broadly interpreted to cover the poor and disenfranchised and help solve society's problems.

Liu has defended his earlier writings as those of a scholar, not a judge.

Thursday, Sen. Orrin Hatch, R-Utah, called that a "confirmation conversion" and described Liu as part of a group of legal activists who "urge judges to make up rights."
...

Sen. Chuck Grassley, R-Iowa, said in a statement, "I am concerned about his appreciation of the proper role of a judge in our system of checks and balances. His philosophy leads to an inevitable expansion of the power of the judiciary."

Some of Liu's critics, including Lindsey Graham, R-S.C., and Mike Lee, R-Utah, cited Liu's testimony in 2006 against Supreme Court appointee Samuel Alito, particularly Liu's view that "Alito's record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse … where a black man may be sentenced to death by an all-white jury for killing a white man."

Liu has since said that his criticism of Alito was unduly harsh.

A couple of interesting appellate law links

Via the Blog of Legal Times this morning, 182 pages of Brian Garner interviews with Supreme Court Justices on the subject of legal writing.

Closer to home, Record on Appeal posted a helpful recap of ICA Judges Reifurth's and Ginoza's comments last week at the HSBA Litigation section monthly meeting. The post includes practice pointers and a rare and interesting look at the inner workings of the ICA.

State v. Pratt arguments Thursday in Hawaii Supreme Court

Arguing will be Kauai attorneys Daniel G. Hempey of Hempey & Meyers, LLP for Petitioner/Defendant-Appellant, and Tracy Murakami, Deputy Prosecuting Attorney, for Respondent/Plaintiff-Appellee state of Hawaii.

Here's the description of the case and its issues provided on the judiciary's oral arguments schedule:

The defendant in this case, Lloyd Pratt, received three citations for camping without a permit in Na Pali State Park on the island of Kauaʻi. He filed a motion to dismiss the charges, asserting a defense that his activities were constitutionally protected as native Hawaiian practices. The State stipulated that Pratt’s conduct was a traditional and customary native Hawaiian practice, but argued that the State’s interest in regulating the volume of visitors to the State Park outweighed Pratt’s interest in his practice. The Circuit Court of the Fifth Circuit agreed with the State, denied Pratt’s motion, and entered a final judgment convicting Pratt on all three counts. Pratt appealed to the Intermediate Court of Appeals (“ICA”), where a divided court reexamined the State’s concession, and ultimately affirmed Pratt’s conviction. Pratt applied for a writ of certiorari, presenting two questions:(1) when asserting a defense of native Hawaiian practices, should the court balance the defendant’s interests in the practices against the interest of the state to regulate, and if so, what are the mechanics of that balancing test; and (2) did the ICA err in sua sponte reexamining the concession made at the trial court?

I previously wrote about the ICA arguments and its fractured decision. Ben Lowenthal provides an insightful analysis of the court's approach to its decision here. Here is the ICA's decision, and here is the concurring opinion by J. Fujise and the concurring and dissenting opinion by J. Nakamura.

U.S. Supreme Court denies cert. in Doe, Jacob, et al. v. Kamehameha Schools

Wendy Osher at Maui Now -

In March 2010, the 9th Circuit Court of Appeals issued a ruling that four students who anonymously challenged the school’s admissions policy, could not proceed under anonymity.

Today’s ruling essentially, lets stand that prior ruling from the lower court.

Kauai single family TVRs and late purchasers

I'm reading McQuillin's Municipal Corporations on nonconforming uses today, which says:

A nonconforming use is one which lawfully existed prior to the effective date of a zoning restriction, and which is allowed to continue to exist in nonconformity with the restrictions....

The right to continue a nonconforming use is grounded in constitutional law, statutes, and ordinances...

An established nonconforming use runs with the land, and hence a change in ownership will not destroy the right to continue the use.

I was just thinking about the issue in the context of Kauai's Ordinance 904 establishing the mechanism by which single family TVRs existing outside the VDA before March 7, 2008 are grandfathered. The deadline for applying is mid-August. What - I wondered - about people who purchased an operating TVR after March 7, 2008? It appears to me that their purchase of the property after the grandfather date does not invalidate their right to apply and should have no impact on their right to have the application granted.

Apparently Blogger had a major hiccup yesterday

Their statement claims that posts posted yesterday and now absent will be restored.

Update: looks like the posts are back.

Speaking of Hawaii's new foreclosure law

The Advertiser has a related piece today -

Home foreclosures continued to fall in April, marking the fifth consecutive month filings in Hawaii have been below the same month in the previous year.

Experts, however, said the decline continues to be an artificial depression due to several major lenders holding back on new filings after their loan documentation practices were called into question.

also

Local foreclosure attorneys suspect that lenders will take some time to study the new law, which created new consumer protections against foreclosure, and initially might test the law with a relative few cases. That could add to the artificially depressed level of foreclosure activity.

Here's the new law (PDF).

Oral arguments heard yesterday in State v. Pflueger appeal

Here's the judiciary website's description of the case and the issues on appeal

This consolidated case arises from the breach of the Ka Loko Reservoir on March 14, 2006, resulting in the death of seven persons. The State of Hawaiʻi charged Defendant-Appellant James H. Pflueger (Pflueger) with seven counts of manslaughter. The Circuit Court of the Fifth Circuit denied Pflueger's Motion to Dismiss on Grounds of Double Jeopardy and his Motion to Dismiss for Insufficiency of the Evidence, or in the Alternative, Due to Vagueness. Pflueger separately appealed the denials of the two motions, which the Intermediate Court of Appeals has consolidated.

Pflueger argues that his 2003 conviction for a 2002 grading violation at the Ka Loko Reservoir was for the "same" or "continuing" conduct as the 1997 grading violation. The grading covered the spillway and allegedly led to the breach in the reservoir. Under the "same conduct" test, reasons Pflueger, the Hawaiʻi Constitution protects him from subsequent prosecution for manslaughter on the grounds of double jeopardy.

Additionally, Pflueger contends the grand jury had insufficient evidence to establish probable cause that he acted recklessly with a conscious disregard of a substantial and unjustifiable risk that his conduct in covering the Ka Loko Reservoir spillway could result in the death of another. In the alternative, he contends the reckless-manslaughter statute is unconstitutionally vague as applied and he lacked notice that his conduct in filling the spillway in 1997 could expose him to a manslaughter conviction years later.

Here are media accounts

Ka Loko Dam case drags on in appeal
Honolulu Star-Advertiser - Ken Kobayashi - ‎7 hours ago‎
More than five years after the breach of Ka Loko Dam on Kauai led to the deaths of seven people, a state appeals court heard arguments yesterday on whether manslaughter charges against landowner James Pflueger should be dismissed. ...

Pflueger's Attorneys Successful in Delaying Client's Manslaughter Trial ...
Hawaii Reporter - ‎13 hours ago‎
Former state attorney General Mark Bennett told the Intermediate Court of Appeals on Wednesday that even if they rule in the state's favor and allow the manslaughter case against Jimmy Pflueger to go forward, Pflueger succeeded in getting something he ...

Pflueger asks appeals court to dismiss manslaughter charges
Honolulu Star-Advertiser - Ken Kobayashi - ‎21 hours ago‎
James Pflueger appeared in US District Court in October and pleaded not guilty to tax fraud charges in a case unrelated to the manslaughter charges he faces in state court. The Hawaii Intermediate Court of Appeals heard arguments this ...

Former Ag Bennett Defends State's Manslaughter Case Against Jimmy Pflueger ...
Hawaii Reporter - ‎May 11, 2011‎
Mark Bennett, who served as state attorney general under Gov. Linda Lingle, will return today on the state's behalf to argue before the Intermediate Court of Appeals. The case: James Pflueger, retired Hawaii automobile mogul, is appealing manslaughter ...

James Pflueger's Manslaughter Case Heard by Hawaii's Intermediate Court of Appeals
Hawaii Reporter - Aurora Fehring Dingwall - ‎13 hours ago‎
BY MALIA ZIMMERMAN – Bruce and Cyndee Fehring leaned close to each other as they listened to oral arguments presented on Wednesday to the Hawaii Intermediate Court of Appeals by former State Attorney General Mark Bennett and defense attorney William ...

Hawaii's new foreclosure law

Ron Margolis has an analysis here.

Kauai bankruptcies

This Advertiser article claimed last week that bankruptcies have averaged a 6% monthly decline state-wide over the past four months. (Actually, the Advertiser says the "first four months of 2011 have shown a 6 percent decline," but it looks to me like they averaged the month over month change to arrive at 6%). After slogging around a bit for the source of the data, I was interested to find that the U.S. Bankruptcy Court for the District of Hawaii breaks out the personal bankruptcy numbers by county and chapter (as in chapter 7 and chapter 13).

I see that Kauai has averaged about 22 bankruptcies per month over the past twelve months, with just over 19 of those being chapter 7 liquidations and just over 2 a month being chapter 13 reorganizations.

The court also provides a report of all the bankruptcies filed over the past 30 days. True to form, Kauai has 22 of them (all were chapter 7). Interestingly, it also lists the attorneys handling each case so, what the heck, let's see who's getting that business. Lawrence McCreery and Thomas Yano each filed six cases. Kurt Swinburnson filed three. Joe Moss filed two. Two were filed pro se, and Raymond Cho, Stuart Ing and W. Richard Abelmann filed one each.

Lawyers and pubs

I don't know why, but it just feels like a natural combination. A couple of lawyers owned the Dead Goat Saloon in Salt Lake City, Utah where I practiced previously (a hop, skip, and a prayer from Temple Square). I'm glad to learn that the new pub at Wailua golf course across the highway from the correctional center (The Jailhouse Pub and Grill) is part-owned by attorney Mike Soong, and I definitely wish Mike and his partners good luck and a good long run. First, on top of being an accomplished lawyer, Mike is a friendly decent guy who strikes me as someone who would own a friendly, decent pub. Second, it's a good central location to happy-hour with some of the Kapaa lawyers I sometimes happy-hour with. And finally, here's hoping Mike will host some local Bar events.

Here's the pub's Facebook page.

This strikes me as ill-conceived.

How to avoid being a depressed lawyer

...according to Psychology Today. (A list of sensible suggestions).

The legality of killing Bin Laden

...is being discussed around the internet: Jeffrey Toobin has a piece in the New Yorker; the Blog of LegalTimes has a post, What Was the Legal Basis for the Bin Laden Strike?; the Council on Foreign Relations argues on its site that "The U.S. killing of Osama bin Laden in Pakistan was lawful under both U.S. domestic law and international law."

On the other side of the debate, this Spiegel article asserts that "there are serious doubts about whether the targeted killing was legal under international law and the laws of war." Otherwise, those who have opposed targeted killing in the past are relatively quiet. The ACLU published an open letter to President Obama last Thursday objecting to "targeted killings outside conflict zones" and stating that, "the use of lethal force outside of armed conflict zones is strictly limited by international law, and at least in some circumstances, the Constitution, which permit lethal force to be used only as a last resort and only to prevent imminent attacks that are likely to cause death or serious physical injury." However, according to this piece in Politico, the ACLU "has not released an official comment on bin Laden’s death, and has no plans to comment on it."

Finally, here's a piece on NPR's site discussing the legality of releasing pictures of Bin Laden's body.

Here's a bit on the domestic laws discussed in many of the pieces linked above:

In 1976, President Ford issued Executive Order 11905 stating in part, "No employee of the United States Government shall engage in, or conspire to engage in, political assassination." It was superseded in 1978 by Executive Order 12036, signed by President Carter, which stated in part " "No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination." In 1981 President Reagan signed Executive Order 12333, stating in part, "No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination."

However, under the 2001 Authorization for Use of Military Force Against Terrorists (Pub.L. 107-40), "the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

Added: A completely different set of issues is discussed in this Blog of LegalTimes post on naming Bin Laden as a defendant in civil cases.