Saturday, May 6, 2017
The Hawai'i Supreme Court has foregone suspension in favor of a public censure of an attorney who accused several judges of "war crimes"
on July 13, 2012, by filing the Notice of Protest and its attachments in the Third Circuit litigation presided over by the Judge in question, Respondent Kaiama, with reckless disregard as to the truth or falsity of the allegation, accused the presiding Judge of committing war crimes under international Conventions, and thereby filed a frivolous document that served no legal or practical purpose, in violation of Rule 3.1 of the Hawai'i Rules of Professional Conduct (HRPC) (1994), harassed and embarrassed the Judge, in violation of HRPC Rule 3.5(b), engaged in conduct reasonably likely to disrupt the tribunal - and which did disrupt the tribunal - in violation of HRPC Rule 3.5(c), and made statements with reckless disregard as to their truth or falsity concerning the integrity of the Judge, in violation of HRPC Rule 8.2.
We conclude that Respondent Kaiama’s allegations are clearly false upon the evidence in the record, as Respondent Kaiama has not proffered any evidence the Judge in question has been convicted of war crimes by any court or tribunal.
We further conclude the Respondent’s accusations were not opinion based upon fully-disclosed facts, but were mere allegations, based upon tenuous legal analysis of broad statutory provisions which do not survive analysis. We conclude Respondent Kaiama’s allegations “‘imply a false assertion of fact’” which could “reasonably be interpreted as stating actual facts about their target” which are not true, and the charge of war criminal does, by its plain language, charge the Judge with “commission of a criminal offense.” See Standing Comm. on Discipline of the U.S. Dist. Ct. v. Yagman, 55 F.3d 1430, 1438 (9th Cir. 1995) (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 (1990)). In sum, in the words of the United States Court of Appeals for the Ninth Circuit, Respondent Kaiama’s accusations “erode public confidence without serving to publicize problems that justifiably deserve attention,” id. at 1438. As such, Respondent’s allegations are not protected speech. Cf. State ex. rel. Oklahoma Bar Ass’n v. Porter, 766 P.2d 958, 968 (1988). We further conclude these allegations were made with a reckless disregard to their truth or falsity, and were not assertions a reasonable attorney, considered in light of all his professional functions, would make in the same or similar circumstances.
We find, in aggravation, that Respondent Kaiama has substantial experience in the practice of law while, in mitigation, we find Respondent Kaiama has a clean disciplinary record, his conduct was absent a dishonest or selfish motive, and he was fully cooperative with the disciplinary proceedings. Therefore, in light of the mitigating factors, which outweigh those in aggravation,
IT IS HEREBY ORDERED that Respondent Kaiama is publicly censured for his misconduct. Respondent Kaiama is, however, cautioned that further such conduct may result in a period of suspension.
Hawai'i Tribune Herald had a story from May 2013, which apparently is grounded in the attorney's contention that the state courts have no jurisdiction in the Kingdom of Hawaii.
Hawaii County police deny that they are investigating five local judges for “war crimes,” as an Oahu attorney asserted in a media release sent to the Hawaii Tribune-Herald on Tuesday.
Attorney Dexter K. Kaiama of Kailua said three Third Circuit Court judges and two Third Circuit Court judges “are formally under criminal investigation by the Criminal Investigation Section of the Hawaii County Police Department.”
Kaiama said the judges are under investigation “for their alleged role in war crimes by denying defendants a fair and regular trial in foreclosure and ejectment proceedings at the court housed in Hilo and Kona.” War crimes are felonies under federal law according to the 1996 War Crimes Act, Kaiama said.
Assistant Police Chief Marshall Kanehailua said Tuesday, however, that the department received information about the alleged crimes and forwarded the material to the FBI without investigation. “We are not investigating judges on the Big Island,” Kanehailua said. “If the FBI wants to investigate, fine. We have nothing to do with that.”
The charges are rooted in Hawaiian sovereignty claims that date back to the alleged illegal overthrow of Queen Liliuokalani in 1898 and the alleged illegal occupation of Hawaii by the United States government ever since.
Kaiama also said plaintiffs who initiated claims for foreclosure against homeowners, including banks, mortgage companies and their attorneys, are also “under investigation for war crimes,” but it was unclear who is investigating.
The Hawaiian Kingdom Blog links to a video in which the attorney expounds on his "war crimes" argument. (Mike Frisch)