Motion to Dismiss for Lack of Jurisdiction

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Motion to Dismiss for Lack of Jurisdiction Powered By Docstoc
					Pōkā Laenui, aka Hayden F. Burgess 1740 86-226 Farrington Hwy. Wai`anae, Hawai`i 96792 Tel: 697-3045 Attorney for Defendant IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAI`I ) ) ) vs. ) ) GORDON C.Y. AU, ) ) Defendant. ) ____________________________________) STATE OF HAWAII, CR No. 09-1-1465 MOTION TO DISMISS FOR LACK OF JURISDICTION; MEMORANDUM IN SUPPORT OF MOTION; DECLARATION OF DEFENDANT; CERTIFICATE OF SERVICE Judge: Michael Wilson, Trial Week: Nov. 16, 2009 No hearing date set

MOTION TO DISMISS FOR LACK OF JURISDICTION COMES NOW, the Defendant above named, through his undersigned counsel and respectfully moves this court to dismiss the present proceedings against him on the grounds the State of Hawaii has no jurisdiction over him. This motion is filed pursuant to Rules 2.2 &12(b) of the Hawai`i Rules of Penal Procedure and on the grounds that the violations of laws for which he is charged are contrary to Article II, Section 2, and Article VI of the United States Constitution, the U.S. Declaration of Independence, the Constitution of the Hawai`i, the treaties between Hawai`i and the United States of America, the Universal Declaration of Human Rights, the Charter of the United Nations and other laws of Nations. This motion is supported by the accompanying memorandum, the Affidavit of Defendant, the records and files of this case and the arguments of counsel to be submitted at the hearing on this motion. Dated: Wai`anae, Hawai`i. October 30, 2009. _____________________________ POKA LAENUI, Atty for Defendant

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAI`I

) ) ) vs. ) ) GORDON C.Y. AU, ) ) Defendant. ) ____________________________________)

STATE OF HAWAII,

CR No. 09-1-1465

MEMORANDUM IN SUPPORT OF MOTION

. . . A long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises at first a formidable outcry in defense of custom. - THOMAS PAINE, IN HIS PREFACE TO COMMON SENSE I. GENERAL CAVEAT The challenge to the jurisdiction of this court and more broadly, jurisdiction of the U.S. government over those claiming nationality of the sovereign nation of Hawai`i is one not only to the legal application of the U.S. laws in Hawai`i but, perhaps more substantially, a contest to long accepted beliefs of the legality of United States rule in Hawai`i. This is a challenge to beliefs, so ingrained in modern day Hawai`i that serious thought on the matter itself has not been given adequate space in social, political or legal discussions. This challenge of Hawai`i’s judicial system’s assumptions on legitimacy in Hawai`i is however, not a new phenomenon in the annuals of history in which major paradigms of thinking have been cast aside in order to conform the historical and social evidence to the governing paradigm. The bold dispute by Galileo Galilei regarding the flights and patterns of the heavenly bodies or Christopher Columbus regarding the shape of the world is essentially of the same -2-

nature as we have here. Those challenges placed observable facts in contradiction to religious and “scientific” dogma of the day. Eventually, the wisdom of the ages, which called for theories to conform to the observable facts, won the day. While the issue now before this court does not pit scientific theories against observable scientific facts, the challenge is essentially the same. Does the United State of America or the State of Hawai`i have jurisdiction over those individuals who have chosen to remain Hawaiian nationals and who have disavowed any attribute of U.S. citizenship? We are called upon to place the long-standing jurisdictional claim of the State of Hawai`i over Hawaiian nationals into question. Especially difficult in addressing such questions is the long accepted “customary thinking a thing right” as well as a multiplicity of interests dependent on an outcome supporting such customary thinking, rather than a dispassionate consideration of the question through an honest review of the evidence. One way of dealing with such confrontations is by simple avoidance - not giving serious consideration to those voices, demeaning the advocate through a variety of methods including criminalization, overpowering such challenges by calling out the social forces which depend upon the assumption being challenged, creating or promoting division within the camps of the challengers, etc. Another tactic to overcome such challenges is by invoking paradigms or frameworks, which are outcome rather than analysis directed. Yet another is by using “precedent” of higher courts’ decisions which courts have never examined the newly revealed evidence or facts presented in such earlier cases. Having U.S. courts applying U.S. domestic laws and views as if such domestic laws are independent of international laws, to decide issues of U.S. complicity in international crimes is such a framework. This is an old colonial trick known as “having a thief sit in judgment of itself.”

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All of those methods to quiet the voices of Hawaiian nationalists have been used. Yet, the quest for Hawaiian sovereignty and the voices of Hawaiian nationalists have not diminished. Instead, it grows even stronger. It has been said as a matter of common wisdom, that when a just or right cause has reached a point “whose time has come”, there is no stopping the conversion to that cause. The breakdown of the Berlin Wall had reached that time so that a renewed Germany could emerge. The will of the citizens of Latvia, Estonia and Lithuania to reestablish their national state, free of the Union of Soviet Socialist Republic had also reached that point in time. The downfall of communism as represented by the Soviet Union was also inevitable because its time has come. The re-emergence of Hawai`i, free of the shackles of the United States, will follow the same inevitable pattern. The late aunty Emma Defries, noted Kupuna, had prophesized to this writer that this was the generation in which the reemergence of the Hawaiian would occur. Where, in a society, can one find institutions appropriate for the proper management of such challenges? The Legislature? The Judiciary? The Executive? These branches of government have historically proven to be inadequate because as institutions, they are all tied to and supported by the very assumptions being challenged - their legitimacy. They are, as institutions, dependent on the outcome for their very survival. But the situation is not hopeless. Such institutions are peopled with individuals, like those who lived during the days of Copernicus, Galileo, and Columbus, and thereafter, who understood the contradictions between the customary paradigms and the surrounding evidence, which could not be accommodated by those paradigms. Those were the people who in fact allowed for the shift in the paradigms, allowing for new paradigms to meet the evidence that were no longer deniable. This motion is part of that search for such honest folks willing to take on this difficult task of allowing for such a shift in paradigms which no longer accord with the historical

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evidence concerning Hawai`i and our relationship to the United States of America and the State government. We come to this court and lay our cause before it in hopes that it will be heard and considered fairly, overcoming the formidable outcry in defense of custom. The quest for Hawaiian sovereignty will not end in this case or this court. It will march onward throughout all of the institutions of this society until enough honest folks are ready to come face to face with the truth of our situation and join the struggle for Pono, for righteousness, for truth and balance, in Hawai`i nei. Aloha `aina.

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II. STATEMENT OF THE CASE Defendant is charged with ten counts of Willful Failure to File Returns to the State of Hawaii. Defendant asserts his Hawaiian nationality, tracing his ancestry to his forefathers who were nationals and citizens of the Hawaiian nation, having been birthed in the Hawaiian Islands, and have resided in Hawai`i since birth. Defendant disavows any citizenship in the United States of America. Defendant challenges a law that requires that he finance his own colonization. Arguments respecting jurisdiction of Hawai`i over defendant The Defendant, when first contacted by the taxing office of the State of Hawaii, informed that office that he was a member of the Hawaiian nation, challenging the State to prove its jurisdiction over him. Immediately upon arraignment in the District and subsequently, Circuit Court, he again noted his nationality as Hawaiian, denied the jurisdiction of this U.S. court over him, and refused to enter a plea when charged by the State of Hawai`i on jurisdictional grounds. This memorandum of facts and of laws will describe the basis of Hawai`i as an independent and sovereign nation and proceed to relate the step by step process of illegality engaged in by the United States of America including violation of treaties with Hawai`i and of customary international laws, conspiracy for the overthrow of an independent and sovereign nation, armed military invasion, overthrow, establishment of a puppet government, a sham transfer of governance, territory, and citizens to the United States of America, and a sham establishment of a territorial and State government. The Hawai`i State government is a continuation of the chain of illegalities practiced by the United States government and a violation of international customary, treaty, and common law, a violation of the United States Constitution, and a violation of the constitution of the Hawaiian nation. As a result of these illegalities, the State of Hawai`i has no jurisdiction over the Defendant to hold him liable for the crime of Willful Failure to File Tax Returns to the State.

Statement of Facts Relevant to Issues -6-

1. Defendant was born in Hawai`i in 1946. He descends from Hawaiian citizens. He has never willfully relinquished his nationality in the Hawaiian nation. (Attached Declaration of Defendant) 2. The United States and Hawai`i engaged in various treaties and agreements and each had recognized the other as sovereign independent nations. (Public Law 103-150, Nov. 23, 1993, hereafter Apology Resolution), 3. On January 16, 1893, in pursuance of the conspiracy to overthrow the Government of Hawai`i, the United States Minister caused U.S. naval forces to invade Hawai`i. (President Cleveland’s Message to Congress, December 18, 1893) hereafter Cleveland’s Message), (Apology Resolution), (See also Hawaiian Sovereignty Advisory Commission Final Report hereafter HSAC Final Report), Preliminary Report of the Sovereignty Advisory Council, State of Hawai`i to the 16th Legislature, hereafter SAC Report, Act 359, Hawai`i State Legislature 1993, hereafter Act 359 SLH 1993. 4. The invasion by U.S. forces constituted an act of war, and by such an act, the government of a peaceful and friendly people was overthrown. (Cleveland’s Message), (Apology Resolution), (HSAC Report), (SAC report), (Act 359, SLH 1993) 5. A provisional government was formed for the explicit purpose of annexing Hawai`i to the United States. That attempt failed by the Presidential intervention of Grover Cleveland, President of the United States. It subsequently converted itself into the Republic of Hawai`i. The Republic of Hawai`i was not the representative voice of the Hawaiian people. It instead, suppressed the voices of the people and proceeded on its project of annexation. (Cleveland’s Message), (Apology Resolution), (HSAC Report), (SAC Report), (Act 359 SLH 1993),

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6. Hawaii’s people had a history of democratic participation in government, were accustomed to participate in the Constitutional forms of Government, in the election of Legislatures, in the administration of justice through regularly constituted magistrates, courts and juries, and in the representative administration of public affairs, in which the principle of government by majorities had been acknowledged and firmly established. But in the action to form a government called the Republic of Hawai`i, and to annex Hawai`i to the United States, the consent of the people of the Hawaiian Islands had never been asked by nor accorded to the people of the Hawaiian islands. Instead, both projects were subversive of the personal and political rights of the Hawaiian people and Nation and constituted a negation of the rights and principles proclaimed in the Declaration of American Independence, and in the schemes of government of all other civilized and representative Governments. The success of both schemes was not without the active support of the Government of the United States of America. (Cleveland’s Message), (HSAC Report), (SAC Report), (Act 359, SLH 1993)

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7. The Republic of Hawai`i signed a treaty with the United States for annexation. The vast majority of the Hawaiian nationals protested this treaty, and implored the U.S. Congress not to participate in this theft. The U.S. Senate failed to obtain the constitutionally required 2/3rds vote of the U.S. Senators present in order to ratify the treaty of annexation. Members of Congress, in order to skirt the U.S. Constitutional requirement of Article 2, Section 2, eventually adopted a joint resolution of Congress, the Newland Resolution, as a form of treaty ratification. (Apology Resolution), (HSAC Report), (SAC Report), (Act 359, SLH 1993) 8. The Newland Resolution is not valid as a form of treaty ratification for a joint resolution of the U.S. Congress does not reach the legal standard of overriding a constitutional requirement that all treaties must be approved by 2/3rd of the Senators present in the U.S. Senate. Nor is it a valid usurpation of the U.S. Senate’s prerogative to maintain its consideration of the Hawaii-USA treaty, which it had retained in the Senate’s relevant committee when the resolution was sent to the Senate for a vote. Article 2, Section 2, U.S. Constitution 9. The Hawaiian nationals never relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchial form of government or through a plebiscite or referendum. (Apology Resolution), (HSAC Report), (SAC Report), (Act 359 SLH 1993), 10. The U.S. Congress proceeded to establish a colonial government in Hawai`i. It established the Territory of Hawai`i and set up a governmental form in which the U.S. President appointed Sanford B. Dole, the same man who acted as President of the

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Provisional Government and the Republic of Hawai`i, as Governor of the Territory of Hawai`i. Organic Act, Act of April 30, 1900, 31 Stat 141 11. A long period of colonization followed in which a program of resocialization, economic dependence, military occupation, education takeover, control over the judicial system, control over the media, attack upon the indigenous language and culture, and a denial of the continued existence of Hawaiian nationality took place. (SAC Report), 12. The Hawaiian people have maintained a continued resistance to the exercise of U.S. jurisdiction over them or their national territory since the invasion in 1893 up to the present time. They have maintained their national consciousness as Hawaiian nationals, and the continued existence of their nation, distinct and apart from the United States of America. Their cry for release from the occupation and subsequent colonization from the United States of America has never been extinguished over the 100 years since the 1893 U.S. military invasion. (HSAC Report), (Hawaiian Sovereignty Elections Council Final Report - hereafter HSEC Report), (SAC Report), (Act 359, SLH 1993), 13. In 1959, and following years of transmigration of American citizens into Hawai`i, many from the U.S. military, the United States allowed only American citizens residing in Hawai`i for a minimum of 1 year to participate in a vote for “Statehood”, a form of domestication of this American colony. The Hawaiian nationals were not allowed participation unless they accepted instead U.S. citizenship. The U.S. government presented only one choice in the plebiscite, integration within the United States, either as a State or a territory of the United States. The choice of independence or free association with the United States was not offered. The action taken in 1959 was in contravention of the principles of the United Nation’s Charter as well as its resolutions on the subject of

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decolonization and human rights. (The Politics of Forgetting & Remembering by Poka Laenui, January 14, 1998 published in the Honolulu Weekly, January 1998 and republished as Hawaiian Statehood Revisited, Chapter 3, Reclaiming Indigenous Voice and Vision, Edited by Marie Battiste UBC Press, 2000) (HSAC Report at pages 44 - 46), U.N. Charter, Article 73, U.N. General Assembly Resolutions 66, 1514, 1541 14. The U.S. Congress acknowledged the historical significance of the events which have taken place in Hawai`i resulting in the suppression of the inherent sovereignty of the Native Hawaiian people, recognized and commended efforts of reconciliation, apologized to Native Hawaiians for the overthrow of the Kingdom of Hawai`i and the deprivation of the rights of Native Hawaiians to self-determination, committed to acknowledging the ramifications of the overthrow of the Hawaiian Kingdom in order to provide a proper foundation for reconciliation between the U.S. and the Native Hawaiian people, and urged the U.S. President to also acknowledge the same ramifications and to support reconciliation. (Apology Resolution) 15. The State of Hawai`i also acknowledged the need for reconciliation based upon the facts reflecting the illegalities which have taken place in Hawai`i. (Act 359, SLH 1993), (Act 200, Session Laws of Hawai`i, 1994)

Summary of the Arguments There is no instance throughout the relationship between Hawai`i and the United States of America which justifies or legitimizes the acquisition by the U.S. of Hawai`i, either as a territory or as a State of its union. Nor is there any instance by which Defendant legitimately lost his Hawaiian nationality or undertook U.S. citizenship. That

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being the case, the laws of the United States have no territorial or personal jurisdiction over a Hawaiian national whose residence and activities are limited within Hawai`i. Indeed, the continued assertion of authority by the United States of America and of the State of Hawaii over the territory of the Hawaiian nation and its nationals is a practice of colonization, an international crime.

Argument The historical facts are uncontested. The U.S. assaulted the Hawaiian nation through a conspiracy with mostly American citizens in Hawaii to deprive Hawaiians of their country. The U.S. participated in a sham stepped-transaction to take and colonize Hawaii. The consent of the Hawaiian people was never obtained by the U.S. or the State government, to govern the Hawaiian people. This case is not one of factual determination. Based upon the uncontested facts, the only question before this court is the appropriate application of law. A. The Constitution of the United States is the supreme law of the United States and to the extent the U.S. laws contradicts or violates the constitution, such laws are unconstitutional and unenforceable. U.S. Constitution, Art. VI B. International law applicable to and binding upon the United States of America are a part of the supreme law of the land and to the extent any internal law contradicts or violates such international laws, the internal laws are unconstitutional and unenforceable. U.S. Constitution, Art. VI; The Paquete Habana; the Lola, 175 U.S. Reports 677 (1900) C. The United States of America and all of its branches of government must conduct its international affairs in accordance with international law. 1 M. Whiteman, Digest of International Law 1 (1963); U.S. Constitution, Art. VI D. A state in international law or individuals acting as agents of the state may not excuse themselves for violations of international law on the basis that its municipal or internal constitution or laws permitted such violations. Werner Levi, Contemporary International Law, A Concise Introduction, Westview Press, 1979 at p. 25;

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Declaration of Rights and Duties of States, adopted by the International Law Commission, 1949, Art. 13; The Judgment at Nuremberg, 1 International Military Tribunal, Trial of the Major War Criminals 171 (1947) E. The activities and transactions engaged in by the United States of America in its dealings with and with regards to Hawai`i was not in accordance with international law. The Judgment at Nuremberg, 1 International Military Tribunal, Trial of the Major War Criminals 171 (1947); Bradford W. Morse and Kazi A. Hamid, American Annexation of Hawai`i: An example of the Unequal Treaty Doctrine, Connecticut Journal of International Law Vol. 5, No. 2, Spring 1990; Cleveland's Message; Apology Resolution; U.N. General Assembly Resolutions 66 (1946), 1514 (1960), 1541 (1960). F. A treaty of Annexation must be entered into between proper parties, without coercion, and consistent with the internal rules of both state parties. Vienna Convention on the Law of Treaties, May 22, 1969 at Articles 51, 52, 53; G. The internal laws of a state does not have extra-territorial jurisdiction unless the person over which jurisdiction is sought is a citizen of such state or the activity alleged to have been committed has special significance to the state. Werner Levi, Contemporary International Law, A Concise Introduction, Westview Press, 1979 at p. 116; H. The entry of Hawai`i into the union of States of the United States does not obviate the illegalities of annexation of the territory and the declaration of Hawaiians as U.S. citizens. Definition of Aggression, U.N. Resolution 3314 (14 Dec. 1974); Article 73, Charter of the United Nations; U.N. General Assembly Resolutions 66 (1946), 1514 (1960), 1541 (1960).

The tax laws of the State of Hawai`i are not omnipotent. They are limited by the Constitution of the United States, the Constitution of the State of Hawai`i as well as by International Law which has been made part of the domestic law of the United States. Specifically, the jurisdiction of the U.S. Congress & the State of Hawai`i are limited by the general limitations of personal, subject matter or territorial jurisdiction. There must either be a basis for personal jurisdiction, i.e., the individual is a national or resident of the United States; subject matter, or a territorial jurisdiction, i.e., the governing entity has jurisdiction over the physical territory.

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Stated another way, the U.S. government has no power to impress a tax law upon non-nationals or non-citizens who maintain neither domicile nor residence within the territory of the United States. Restatement (third) of the Law The Foreign Relations Law of the United States, §§411, 412, As Adopted and Promulgated by The American Law Institute, May 14, 1986 §411. Proof of jurisdiction, when challenged, becomes the obligation of the party asserting such jurisdiction, to prove that it exists. Jurisdiction should not be something assumed, taken by default, or undertaken because of custom. If there exist no certain basis upon which jurisdiction can be supported, going forward in applying it simply invites the practice of power and not law, obedience to which is founded not upon ethics and good conscience but merely upon fear and a hope to avoid such brute power. As to Defendant’s nationality, there has been no act committed by Defendant, nor by his forefathers, which constitute the legitimate loss of Hawaiian nationality. The Government can neither assert nor present any evidence to the contrary. One cannot be arbitrarily deprived of one’s nationality. Article 15, Universal Declaration of Human Rights Conclusion: We start this analysis with the recognition that Hawaii had been an independent nation-state, recognized by the United States and the international community as such. The change in status from that independent status to the current presumption that Hawai`i is under the governance of the United States and of this “State of Hawaii” must be supported by a logical, historical, and legal progression. From then to now, what are the legitimate steps of transition?

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There are none. That being the case, how then can one apply jurisdiction where there is no legitimacy of transfer? It should not be done. Dated: Wai`anae, Hawaii October 29, 2009.

_____________________________ Pōkā Laenui, Attorney for Defendant

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IN THE CIRCUIT COURT OF THE FIRST CIRCUIT STATE OF HAWAI`I

STATE OF HAWAII,

) ) ) vs. ) ) GORDON C.Y. AU, ) ) Defendant. ) ____________________________________)

CR No. 09-1-1465

DECLARATION OF DEFENDANT 1. I am Gordon C.Y. Au, born on September 17, 1945 in Honolulu, Hawai`i. 2. I am a national of the Hawaiian nation. I trace my ancestry to nationals and citizens of the Hawaiian nation. 3. I am not a citizen of the United States of America or of the State of Hawai`i. I do not recognize these governmental entities as my government. I see both of these governments as illegal occupiers of my Hawaiian nation. 4. I have informed tax authorities of the State of Hawai`i of my Hawaiian nation when they first contacted me regarding tax payments. Dated: Honolulu, Hawaii October 29, 2009.

___________________________ Gordon C.Y. Au

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CERTIFICATE OF SERVICE I certify that the foregoing Motion to Dismiss for Lack of Jurisdiction, Memorandum in Support of Motion, and Affidavit of Defendant has been served upon the below named person via U.S. Postal Service, first class mail, postage prepaid on the __ day of October 2009. Janine R. Udui, Deputy Attorney General Department of the Attorney General State of Hawaii 425 Queen Street, 3rd Floor Honolulu, HI 96813 Dated: Honolulu, HI, October __, 2009.

__________________________ Pōkā Laenui, Attorney for Defendant

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