Category Archives: Hawaiian issues

Court declines to dismiss consumer protection case against Hawaiian attorney

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On January 16, 2020, Circuit Court Judge James H. Ashford denied a motion to dismiss a lawsuit accusing attorney Dexter Kaiama of multiple violations of Hawaii’s Mortgage Rescue Fraud Prevention Act.

The decision means a lawsuit seeking to bar Kaiama and associates from providing any assistance in the future to consumers facing foreclosure actions can now move forward.

The civil lawsuit was originally filed by the Office of Consumer Protection in April 2019. It alleges Kaiama violated multiple provisions of Hawaii’s Mortgage Rescue Fraud Prevention Act when he accepted payments to make special courtroom appearances in foreclosure proceedings.

In cases described in the OCP complaint, Kaiama allegedly made the “special appearances” in court on behalf of consumers recruited and advised by sovereignty activist David Keanu Sai and a third person, Rose Dradi. Sai allegedly provided clients with legal documents to be filed in court on a “pro se” basis, where the clients represented themselves without the benefit of counsel. Sai and Dradi are not attorneys, so could not appear in court to make the critical sovereignty arguments on their client’s behalf. Instead, OCP alleges, Kaiama, as a licensed and practicing attorney, was paid to make “special appearances” in court to present Sai’s sovereignty argument.

Kaiama has gained a measure of prominence for actively promoting Sai’s theory that Hawaii courts lack jurisdiction in foreclosure cases because land titles were rendered invalid by “illegal” overthrow of the Hawaiian Kingdom and Hawaii’s annexation to the U.S. and eventual statehood. He has made similar arguments on behalf of sovereignty activists facing other charges, including criminal charges.

OCP’s lawsuit alleges violations of three specific provisions added to the law in 2016 that require (a) an attorney to have a written contract with a client, (b) to deposit client’s funds into a separate trust account, and (c) for the funds to remain in the trust account until all services were “fully performed.”

OCP has argued elsewhere that failure to comply with these provisions constitutes “unfair and deceptive trade practices.”

Kaiama’s attorney, Steve Laudig, maintained the mortgage rescue fraud statute’s provisions applying to lawyers are unconstitutional because the State Constitution gives the State Supreme Court, and not the legislature, the sole power to regulate the practice of law.

In addition, Laudig argued Kaiama is a victim of retaliation because of his advocacy of Hawaiian sovereignty in a variety of court proceedings.

The SOH (State of Hawaii) is using legal process against Attorney Ka?iama because he has made, and continues to make, a certain legal arguments which challenges the international and domestic lawfulness and constitutionality of the United States Government presence in the Hawaiian Islands. Attorney Ka’iama is targetted by the SOH because of his advocacy of a particular legal theory not for any business or commercial activities on behalf of a client.

As the case moves forward, the Office of Consumer Protection is seeking an injunction to prevent Kaiama or associates from representing any distressed property owners in foreclosure cases in the future, along with civil fines and penalties of $10,000 for each violation of state law, and additional fines for each case in which the clients allegedly harmed were over age 62. Finally, OCP has asked the court to declare all contracts between Kaiama and distressed homeowners “void and unenforceable.”

Also see:

“Two sovereignty advocates hit with allegations of mortgage rescue fraud,” ilind.net, May 11, 2019.

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

“Ian Lind: Dispute Muddies Already Confusing State of Sovereignty Claims,” Civil Beat, September 2, 2015.

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

“TMT protesters cling to discredited legal defense,” ilind.net, July 20, 2015.

“Kingdom-based claims still being used to block foreclosures,” ilind.net, September 5, 2011.

The New Year is just three days old, and I’m already days behind schedule

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So much for those New Year resolutions!

I was fully intending to finish a post yesterday on a recent court case again pushing the legal theory that the State of Hawaii does not actually have legal right to the public land it controls. No court has yet given credence to these legal theories, but that doesn’t seem to stop some activists, and a few attorneys, from trying again. And again.

When my plan to get it posted yesterday proved too ambitious, I thought that I would certainly be finished by this morning.

But, unfortunately, it’s not ready for prime time. You’ll just have to remain in suspense for at least another day.

I’m looking at a recent Hawaii court decision that is one of a long train of court cases brought by or on behalf of Windyceslau D. Lorenzo. I doubt most of you will recognize his name, and are likely equally unfamiliar with his claim to the title of Kamehameha VI, King of all the Hawaiian Islands. He is, of course, just one of several claimants to the throne of the Hawaiian Kingdom. Or the Kingdom of Hawaii, if that semantic difference is important to you.

I haven’t yet located the earliest case in which Lorenzo raised similar issues. But in 1989, Lorenzo and others took over a state-owned parcel of land in Waimanalo. They were eventually evicted, but Lorenzo filed a lawsuit in federal court alleging that his due process rights had been violated because he was actually the owner of the Waimanalo land.

Lorenzo lost the case, and then appealed to the 9th Circuit Court of Appeals, which upheld the ruling.

Here’s an excerpt from the 9th Circuit opinion:

Due Process Violation

Lorenzo claimed that defendants violated his right to due process by evicting him from the land because he had title to the land. The procedural due process requirements of the fourteenth amendment apply only when a constitutionally protected liberty or property interest is at stake.

Here, Lorenzo’s only evidence of a property right in the land is a purported “deed” from Rose P. Lorenzo, dated 1988, which grants 6970 acres of land, including the parcel at issue, to Lorenzo. Lorenzo did not provide any evidence of how Rose P. Lorenzo acquired title to the property. Defendants provided a title report tracing the state of Hawaii’s title to the land back to the beginning of the Hawaiian Monarchy. Given this evidence, the district court correctly granted summary judgment for defendants on Lorenzo’s due process claims because Lorenzo had no protected interest in the property.

AFFIRMED.

Anyway, more on the latest court decision soon.

State’s largest newspaper calls for clearing Mauna Kea protest site

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The Honolulu Star-Advertiser ran an unusually strong editorial in its Sunday edition, taking on the TMT stalemate on Mauna Kea that has grown in to a more generalized rebellion with me-too civil disobedience demonstrations surrounding the latest wind farm in Kahuku and the park planned for Sherwood Forest in Waimanalo (“Editorial: Protest blockades can’t rule Hawaii“).

The editorial meanders through a recap of where we are after 100 days of the protest camp on the Mauna Kea access road. It acknowledges valid and longstanding grievances of Hawaiians. But….

For Hawaii as a whole, community engagement can be lacking, with both sides bearing some of the fault for being late to the conversation. But for Hawaiians in particular, a longstanding sense of grievance has fueled the protests. And the kia‘i have taken this occasion to draw a red line. No TMT deal, no way.

That may feel right, emotionally. But rarely in a democracy can that intransigence be allowed to stand — especially here, where every hurdle has been cleared.

That is, where every “legal” hurdle has been cleared.

And after chiding those who have emerged as leaders of the anti-TMT demonstrations for refusing to negotiate to end the standoff, the editorial calls for officials to end the encampment, saying the site “must be cleared.”

peaceful resistance, also known as civil disobedience, assumes the willingness of the resisters and the disobedient to accept the consequences that their actions bring. There have been very few consequences at the Mauna Kea Access Road, and even the encampment facilities have been allowed to remain and the barriers to harden.

Nevertheless, they must be cleared — a painful step the state must take lest Hawaii lose something with the potential benefit of a world-class telescope. The erosion of public support is evident, but that does not negate the immense promise of this project, its leaders having followed every procedural step the state laid out.

The editorial ends by pointing to the significant political gains already achieved by the TMT protests, up to and including the new “shared governance” for Mauna Kea that has been floated, but dating back to earlier revamping of the management of the astronomy district, agreement to decommission older telescopes, siting of the TMT to be visible only from certain angles, and avoiding interfering with traditional and customary activities, whether religious or cultural, etc.

I agree that the self-defined protectors of Mauna Kea need to dial back their inflexible position and look for additional creative reforms that could be negotiated for without demanding total rejection of TMT.

That inflexibility was evident in comments left here in response to a post in which I raised the issue of how we can work out differences given competing definitions of “sacred” in a diverse society like ours. Instead of positive suggestions of principles that might provide guidance in sorting out these difficult situations, it seemed like most of those who commented simply doubled down in support of their own positions without regard for how to resolve conflicts. I found that quite troubling.

There is a certain spiritual purity that comes from holding fast to an unyielding position based on high principle. It is, in many respects, what saints are known for. But it’s not the kind of position that allows for working out differences or governing a diverse community in the long run. And it’s not a path many regular people can travel down once principle demands personal suffering.

It seems to me there are times for direct confrontation and standing firm on principle. There is also a time for moving ahead to claim the fruits of victory, perhaps not all that was sought but significant victories nonetheless. The movement to stop the bombing of Kahoolawe started with several years of civil disobedience, along with the criminal prosecutions that followed. There were heroes that emerged from those civil disobedience actions. Their sacrifices certainly grew the movement and generated long-term public understanding and support. But civil disobedience ultimately had to be supplanted by efforts to harness that political support in order to achieve the legal and political victories that ultimately led to the end of the Navy’s bombing of the island, and its eventual return to the State of Hawaii. Simply standing firm was not enough to stop the bombing. It took a different kind of leadership to work the system and achieve the end of military use and the chance to rehabilitate the island. It seems to me that the movement to protect Mauna Kea also has to be prepared to shift gears and move beyond civil disobedience.

In that sense, I find myself in agreement with the Star-Advertiser’s editorial writers.

Can this offer of “government bonds” be legal?

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A group calling itself “The Hawaiian Kingdom” is offering its own “Hawaiian Kingdom bonds” as a tax-exempt “savings product.”

The group claims they are available in denominations of $25, $50, $100, $500, $1,000, $10,000, $50,000, and $100,000.

The groups website claims investors can never lose money because the bonds “are securities backed by the Hawaiian government. The interest rate is fixed and the redemption value of your HK bond cannot decline.”

Exactly what this particular group claiming to be The Hawaiian Kingdom will be doing with any money they take in on such sales isn’t disclosed, or why we should believe there will be funds available to redeem the bonds and pay accrued interest.

And there’s this:

A bond is a loan to the government and is exempt from any taxes whatsoever. It is a debt security issued by the Ministry of Finance to help pay for the Hawaiian government’s borrowing needs. HK bonds are issued in paper form with an embossed seal over the Minister of Finance’s signature. The Ministry of Finance keeps an electronic file of the issued HK bond(s).

As to the question of legality, the group points to a 1886 law signed by King Kalakaua which authorized the Minister of Finance to issue bonds “with the approval of the King in Cabinet Council….”

There are so many things wrong here.

The most obvious is that the Hawaiian Kingdom and the authority of its laws ceased to exist in 1893. Beyond that, this particular group is just one of many claiming the right to speak for the nonexistent kingdom.

And that means that the 1886 law is not the current law governing investment offers, issuance of “government bonds,” etc.

Now we have a whole lot of federal and state laws regulating the sale of securities, including bonds. You’ve got to wonder whether an offer like this complies with existing securities laws and regulations?

And then there’s the little issue of how an investor can get their money and interest back. According to the fine print in the offer, it’s going to be difficult to get anything back.

The bonds, according to the website, are: “Redeemable at par within 1 year after the 5th year from the date when the United States of America’s military occupation of the Hawaiian Islands has come to an end and that the Hawaiian government is in effective control in the exercising of its sovereignty.”

So say aloha to your cash unless and until five years after that pie in the sky day that an independent Hawaiian government is restored to power. So when will you get your money back? Effectively, never.

What a deal!