Reply memo on Motion to Dismiss

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					Pōkā Laenui, aka Hayden F. Burgess 1740 86-649 Pu`uhulu Rd. Wai`anae, Hawai`i 96792-2723 Tel: 696-5157 Attorney for Defendant 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 REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR LACK OF JURISDICTION; CERTIFICATE OF SERVICE

Judge: Michael Wilson, Trial Week: Dec. 7, 2009

REPLY MEMORANDUM IN SUPPORT OF MOTION TO DISMISS FOR LACK OF JURISDICTION In the State’s memorandum in opposition to the Defendant’s motion to dismiss on the grounds of lack of jurisdiction, it is important to note the following: A) The State has not contested any of the 15 points contained in the Statements of Facts found from pages 7 to 11. B) The State has not contested the assertion that there has been no legitimization of the acquisition by the U.S. of Hawai`i. (p. 11 of Defendant’s motion) C) The State has not contested the assertion that the Defendant has not lost his Hawaiian nationality or undertook U.S. citizenship. (p. 11 of Defendant’s motion) D) The State has not contested the position that the assertion of authority by the United States of America and of the State of Hawaii, over the territory of the

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Hawaiian nation and its nationals is a practice of colonization, an international crime. (p. 12 of Defendant’s motion) E) Nor has the State contested or even addressed any of the arguments of the Defendants (p. 12 – 14) setting out from A to H the principles of U.S. Constitutional law; the applicability of International law to the United States of America; the binding effect of international law upon the United States of America’s branches of government; the lack of justification that one’s municipal laws when applied may violate international laws; the transaction of the United States of America in its dealings with and with regards to Hawaii was not in accordance with international law; a treaty of Annexation must be entered into between proper parties without coercion and consistent with the internal rules of both state parties; that 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; and finally, the entry of Hawaii into the union of States of the United States of America does not obviate the illegalities of annexation of the territory and the declaration of Hawaiians as U.S. citizens.

The State has left all of the above unchallenged and has chosen instead, to do the following: 1) Recite internal laws of the State of Hawaii, using such recitation as selfserving claims of the legitimacy of its jurisdiction; Here we contest, not the fact that the laws cited by the State does in fact make the declarations quoted in the State’s memo, but the appropriateness of its territorial claim relative to Hawaiian nationals, and the asserted supremacy such statutes have as regards the facts of this case and over international law. 2) Declare itself a lawful government, using its domestic process for such a declaration; (State v. Fergerstrom & State v. Lorenzo) Defendant Au has not challenged or contested the lawfulness of the State government because that question is essentially irrelevant to the issue. Even if we assume for a moment that the State is a lawful government, the State

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would still not be able to impose its domestic laws upon one who is not its citizen or operating within its territory. The real test is one of citizenship and the legitimacy the asserting state has over the territory from which income was derived by Defendant. 3) Assert that a prior defendant (Lorenzo) has failed to show that he is a subject of a Hawaiian State. This is an irrelevant point in the present case and was probably irrelevant in the Lorenzo case. The question of jurisdiction goes to whether or not one is or is not a citizen or national of the state asserting jurisdiction, not on what other nation or state of which an individual may be a citizen or national. Regardless of Lorenzo’s Hawaiian citizenship or nationality, the operative question should have been whether or not he was an American citizen and a citizen of the State of Hawai`i. 4) Declare that an immunity defense requires the person making that claim carry the burden of proving the defense. (Nishitani v. Baker) In the present case, Defendant is not making an immunity defense. An immunity defense is indeed an affirmative defense, which must be carried by the Defendant to show that the Defendant is made immune from prosecution. In the present case, the Defendant is not claiming immunity because there is no acceptance that there is jurisdiction by the State in the first instance. The role of this court within this adversarial forum, faced with Defendant’s facts unchallenged by the State, legal international principles also unchallenged by the State, and 4 points made by the State, challenged by the Defendant as to their relevancy to this case, is to act as the “umpire” to determine whether or not the State’s four points are well placed, and if so, how does each point override the unchallenged facts and international legal principles stated in Defendant’s memorandum. As to point 1 of the State’s opposition to Defendant’s motion to dismiss, the mere fact that State of Hawai`i recites in its domestic laws that it has taxing authority is not adequate to obtain jurisdiction to tax. The domestic laws of the

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State must still meet international legal principles. We have already established these legal principles in our recitation at pages 13 & 14 of our memorandum in support of our motion as follows: 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. 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 In the present case, there has been no refutation by the State that Mr. Au is a non-citizen of the State of Hawai`i or of the United States of America. Thus, there is no jurisdiction over Mr. Au on the basis of his nationality. Furthermore, there is no refutation by the State to the factual assertions contained in Defendant’s memorandum, which would contest the claim of jurisdiction by the State of Hawai`i over the territory of the Hawaiian nation. Thus, the Hawai`i territory originally recognized by treaties and agreements between the United States of America and the Hawaiian nation has never been properly transferred to the United States of America or to the State of Hawai`i. The territorial jurisdiction application of the State of Hawai`i of its taxing authority over Mr. Au’s activities in Hawai`i therefore does not hold. The only other basis for jurisdiction is therefore subject matter jurisdiction. The State is not asserting subject matter jurisdiction in this case, and if it did, it would fail because one’s income is not a proper subject matter basis of jurisdiction. As to the State’s point 2, the State’s assertion that it is a lawful government, a legitimate State of the Union of States of the United States of America, is simply not a basis for the assertion of jurisdiction. It only forms the initial basis to

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establish the State as an appropriate party to assert jurisdiction. But that assertion of jurisdiction must still meet the test of a personal, territorial or subject matter nexus between that State party and the person from whom taxes are being sought. As to the State’s Point 3, we have pointed out that defendant Lorenzo’s prior failure to show that he is a subject of a Hawaiian State is simply not relevant to the question of jurisdiction. The question of jurisdiction goes to whether or not one is or is not a citizen or national of the state asserting jurisdiction, not on what other nation or state an individual may be a citizen or national of. Regardless of Lorenzo’s Hawaiian citizenship or nationality, the operative question in that case is whether or not he was an American citizen and a citizen of the State of Hawai`i. He could be a stateless person, showing no nationality. That condition would not allow any state to confer its nationality on him on a wish to tax him! As to the State’s Point 4, regarding an immunity defense, the State’s point is essentially pointless in this case. An immunity defense requires the person making that claim carry the burden of proving the defense. (Nishitani v. Baker) In the present case, Defendant is not making an immunity defense. It is simply that the State has no jurisdiction, a very different claim than a claim of immunity.

Conclusion: Comparing the positions taken by the Defendant and the State, when matched against one another, and when the issues of contention are compared, the obvious conclusion of this court must be that there has been a failure of the State to assert a proper basis of its claim of jurisdiction over this defendant. The issue presented by the Defendant in this case has wide ramifications to the State as well as the central or “Federal” government. It is an issue that brings to the fore emotional, historical, cultural, and political concerns oftentimes decided by one’s passions of the moment. The U.S. has gone through numerous similar issues such as the bans on anti-government speeches in World War I, the Japanese-American internment in World War II, and the anti-Communist laws during the McCarthy and Civil Rights years. Over time, the American society has had profound regrets over these laws and acknowledged the constitutional failures

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and the stains left on the courts’ reputation for failing in its role to call those cases fairly, without itself being caught in the passions of the day. In the current challenge of U.S. jurisdiction over Hawai`i, we are faced with the same abandonment of critical thinking, relying on the safe harbors of the popular will and the power holders in the U.S. and Hawaiian society. It is to the courts and the dispassionate application of the rule of law that is the only peaceful recourse available to those who have been victims of this national crime of occupation and colonization in Hawai`i. When all avenues of a fair and peaceful appeal to justice are closed, there is an unfortunate resort to self-help, including the resort to arms. Such resort to arms in the fulfillment of one’s emancipation from colonization is protected by International law, just as the American Revolution and other acts of freedom are protected. If and when that point has to be reached, it will be too late to fully appreciate that those responsible for the violence are not those who commit such violent acts, but those who have denied the justice all along. The wise, responsible and humane course is to issue the justice as and when it is due. Aloha `Āina.

Dated: Wai`anae, HI November 23, 2009.

________________________ Pōkā Laenui, Attorney for Defendant Gordon Au

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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

CERTIFICATE OF SERVICE I certify that the foregoing paper has been served upon the below named person via U.S. Postal Service, first class mail, postage prepaid on the 23rd day of November, 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, November 23, 2009.

__________________________ Pōkā Laenui, Attorney for Defendant

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