In an order published on August 31, the Hawaii Supreme Court denied a “Petition for a Writ of Mandamus” filed by attorney Dexter Kaiama against the Office of Disciplinary Counsel, which investigates complaints of complaints of alleged unethical conduct by Hawaii attorneys.

“A (writ of) mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion,” according to the Legal Information Institute of Cornell Law School.

The court said its review of the petition found Kaiama “seeks relief from the Disciplinary Board of the Hawaii Supreme Court, not from this court.” It denied Kaiama’s petition “without prejudice”, meaning that it can be refiled directly with the Disciplinary Board.

The substance of Kaiama’s complaint about the Disciplinary Counsel isn’t known because the it is sealed and unavailable for public inspection, according to the court docket, although the court’s own rules appear to provide such filings are normally public records.

Kaiama is probably the leading proponent of using the “Kingdom defense” in the courtroom. In court filings, he has repeatedly used the legally-discredited notion that Hawaii’s annexation to the U.S. in 1898 wasn’t legal, the Hawaiian Kingdom continues to exist as a state pursuant to international law and has been under a prolonged and illegal occupation, leaving Kingdom law still in effect. As a result, Kaiama has argued federal and state courts have no jurisdiction in civil or criminal matters.

Kaiama has pursued this argument in a number of criminal and civil cases in both state and federal courts, which has previously brought him into conflict with the Disciplinary Counsel and other agencies.

“The Disciplinary Board of the Hawai`i Supreme Court is an 18-member body appointed by the Supreme Court to supervise the attorney discipline system,” according to the board’s website.

In the disciplinary process, the Office of Disciplinary Counsel investigations complaints and serves as “prosecutor” if formal disciplinary proceedings are deemed warranted and evidentiary hearings are held. The Disciplinary Board then reviews the findings and makes its own recommendation to the Supreme Court as to appropriate sanctions against an attorney, if any.

In 2017, the Hawaii Supremem Court approved an “Order of Public Censure,” which unanimously affirmed findings of the Office of the Disciplinary Counsel that attorney Kaiama committed several violations of the Hawaii Rules of Professional Conduct in 2012 when he accused Circuit Court Judge Greg K. Nakamura of being a “war criminal.”

Kaiama made the “war criminal” allegation in a letter to the military’s Pacific Command, alleging foreclosure proceedings against Kaiama’s client were illegal under the Geneva Conventions and the laws of war which apply during periods of armed conflict, and that Judge Nakamura committed a war crime by failing to defer to a military court.

The court agreed with ODC’s finding that the document containing the war crime accusation was a “frivolous document that served no legal or practical purpose,” and that Kaiama had “knowingly harassed and embarrassed” the judge, in further violation of court rules.

In 2020, Kaiama was permanently barred from providing “legal services or any other assistance” to any homeowner whose property is facing actual or threatened foreclosure. The action came after the State Office of Consumer Protection prevailed on all counts in a lawsuit alleging Kaiama had been Kaiama had been part of a foreclosure defense scheme that attempted to use sovereignty claims to block foreclosure against distressed homeowners. The lawsuit alleged, and the court agreed, that the scheme violated several provisions of the state’s Mortgage Rescue Fraud Prevention Act.

It isn’t clear why Kaiama’s petition to the Supreme Court has been sealed.

Rule 2.22(f) of the Hawaii Supreme Court rules appears to provide that such records are normally considered public.

(f) Supreme Court records are generally public. Except as ordered by the supreme court, or as otherwise provided by these rules, the files, records and proceedings filed with the supreme court by the Board, by Counsel or by a respondent, as well as any oral argument held before the supreme court in connection with any disciplinary proceedings, are not confidential, except that in proceedings under Rule 2.19 of these Rules, any order transferring an attorney to inactive status or subsequently to active status shall be a matter of public record, but otherwise, the record of the proceedings shall not be publicly disclosed.

The court record does not contain any justification for sealing Kaiama’s petition, although the Supreme Court has previously held the presumption that court records are public documents “can only be overcome by findings that ‘the closure is essential to preserve higher values’ and that the closure is ‘narrowly tailored’ to serve that interest.”

Further, the court has previously ruled that to justify keeping a record sealed, a court must “make specific findings demonstrating a compelling interest, a substantial probability that the compelling interest would be harmed, and there is no alternative to [sealing the record] that would adequately protect the compelling interest.”

In this case, the record is devoid of any such “specific finding” to justify not following its own general rule that documents filed in court by the Disciplinary Board, its counsel, or attorney respondents are not confidential, a surprising omission for a high court that has issued a string of decisions upholding the public’s right to obtain government information.

Also see:

“Hawaii Supreme Court rejects sovereignty defense,” iLind.net, Feb 3, 2014

“The ‘Kingdom Defense’ Is a Dead End for Mauna Kea Protesters,” Civil Beat, July 22, 2015

“Ian Lind: Here’s Why Hawaii Judges Are Not ‘War Criminals’,” Civil Beat, May 11, 2017

“More of the sovereignty movement’s pseudo-legal theories,” iLind.net, Feb 2, 2020

“Lawyer known for “sovereignty defenses” barred from future foreclosure assistance,” June 21, 2020

“Connecting some different dots”, iLind.net, Oct 10, 2021

Confidentiality of the Disciplinary Counsel, Rule 2.22, Rules of the Hawaii Supreme Court