Landing on Kahoolawe is not a Strict Liability Offense

State v. Armitage et al. (HSC January 28, 2014)

Background. Nelson Armitage, Russell Kahookele, and Henry Noa were charged by complaint of violating Haw. Admin. Regulation (HAR) § 13-261-10, the offense of entering into the Kahoolawe Island Reserve. The complaints read as follows:

That on or about the 31st day of July, 2006 . . . [the defendants] did enter or attempt to enter into, or remain within the Kahoolawe Island Reserve without being specifically authorized to do so by the commission or its authorized representative, thereby committing the offense of Entrance Into the Reserve, in violation of [HAR § 13-261-10].

The Defendants pleaded not guilty and their cases were consolidated. In their motion to dismiss, they challenged the constitutionality of the regulations and the prosecution itself. The Defendants argued, inter alia, that they had a constitutional right to go onto Kahoolawe in furtherance of traditional Native Hawaiian practices, founding an indigenous nation, and to practice their religion. They also argued that they constituted a recognized sovereign entity as an alternative to the State of Hawaii itself. The motion was denied. The parties then entered into a stipulated facts trial and the district court found the Defendants guilty as charged, but stayed sentence pending this appeal. The ICA affirmed and the Defendants petitioned to the HSC.

At the Outset, the Complaints are Deficient for Failing to Plead Mens Rea. The HSC’s actual holding in this case has nothing to do with Native Hawaiian rights, recognition of the Kingdom of Hawaii, or any other heady matters. The HSC instead focused on whether the prosecution adequately pleaded the offense.

“No person or vessel shall enter or attempt to enter into or remain within the [Kahoolawe Island] reserve unless such person or vessel” is authorized to do so or has met certain enumerated exceptions. HAR § 13-261-10. The regulation does not expressly include a state of mind. Generally, when an offense does not include it, the prosecution still has to prove that the person acted “intentionally, knowingly, or recklessly” unless the absolute liability “plainly appears” or a violation. HRS § 702-204. The HSC held that this offense is not a violation—the offender faces the possibility of up to 30 days jail and a $1,000 fine. HRS § 6K-8. It also held that it does not “plainly appear” from the legislative history of the reg or the reg itself that this should be a strict liability offense. Therefore, HAR § 13-261-10 is not a strict liability offense and the prosecution must prove that the Defendants committed the act knowingly, intelligently, or recklessly.

“A charge that fails to charge a requisite state of mind cannot be construed reasonably to state an offense and thus the charge is dismissed without prejudice because it violates due process.” State v. Appollonio, 130 Hawaii 353, 359, 311 P.3d 676, 682 (2013). The complaints here did not allege a state of mind and so it must be dismissed.

The Long Appellate Process Does not Toll the Statute of Limitations. This offense is a petty misdemeanor. HRS § 6K-8. The statute of limitations for a petty misdemeanor is normally one year. HRS § 701-108(2)(f). The HSC rejected the Defendants’ argument that once dismissed, the prosecution cannot simply re-file because it is time barred. The period of limitation does not run and is tolled “[d]uring any time when a prosecution against the accused for the same conduct is pending in this State[.]” HRS § 701-108(6). According to the HSC, this time includes the time pending on appeal in the State. Specifically, the HSC held that the statute of limitations was tolled from the start of the filing of the complaints and will not end until the HSC remands it back down to the district court and enters its order dismissing without prejudice.

Once that issue was settled and given the likelihood of a retrial, the HSC addressed the other issues raised by the Defendants.

The Right to Establish an Alternative, Sovereign, Indigenous Government. HSC rejects right to nation-building. Although the an indigenous Kingdom of Hawaii “exists as a state in accordance with recognized attributes of a state’s sovereign state” allowing a defendant to challenge jurisdiction, State v. Lorenzo, 77 Hawaii 219, 221, 883 P.2d 641, 644 (App. 1994), the HSC now held that there is no fundamental right to build a sovereign Hawaiian nation. Rather, Lorenzo stands for the proposition that once a federally-recognized sovereign Hawaiian nation has been established, courts may face jurisdictional challenges. Until then, there is no such right.

Landing and Occupying Kahoolawe is not Symbolic Speech Either. The HSC also rejected the claim that going onto Kahoolawe, though politically motivated, was not symbolic speech protected by the First Amendment and the Hawaii Constitution. State v. Jim, 105 Hawaii 319, 97 P.3d 395 (App. 2004) (physical presence of protesters to prevent workers from investigating a water line not protected by freedom of expression); Kleinjans v. Lombardi, 52 Haw. 427, 433, 478 P.2d 320, 324 (1970) (occupying university office “did not take the form of a public rally but instead involved the occupation of the private office of a university official. There could not be any good faith claim that this area was open to the public for the purpose of expressing dissident ideas.”). The HSC specifically held that the occupation could not be considered “speech.”

The Other Issues. The HSC rejected all of the claims raised by the Defendants including infringements on the free exercise of religion and traditional and customary rights of Native Hawaiians.

The Chief Justice’s Concurrence and Dissent. The Chief Justice would have affirmed the conviction because despite the deficient pleading, no one objected on those grounds and no prejudice was demonstrated. Justice Nakayama joined.