Yellen v. United States of America et al
Filing
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ORDER GRANTING STATE OF HAWAII AND GOVERNOR ABERCROMBIE'S MOTION TO DISMISS, DOC. NO. 9 . Signed by JUDGE J. MICHAEL SEABRIGHT on 6/4/2014. ~ "[T]he court GRANTS State Defendants' Motion to Dismiss, and dismisses this action as to all Defendants. The Clerk of Court is directed to close this action." ~ (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MIKE YELLEN,
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)
Plaintiff,
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)
vs.
)
)
UNITED STATES OF AMERICA; )
STATE OF HAWAII; NEIL
)
ABERCROMBIE; JANE/JOHN
)
DOES 1-1000; PRESIDENT
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BARACK OBAMA; UNITED
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STATES MILITARY,
)
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Defendants.
)
_____________________________ )
CIV. NO. 14-00134 JMS-KSC
ORDER GRANTING STATE OF
HAWAII AND GOVERNOR
ABERCROMBIE’S MOTION TO
DISMISS, DOC. NO. 9
ORDER GRANTING STATE OF HAWAII AND GOVERNOR
ABERCROMBIE’S MOTION TO DISMISS, DOC. NO. 9
I. INTRODUCTION
On November 15, 2013, Plaintiff Mike Yellen (“Plaintiff”) filed this
action against the United States, the “United States Military,” United States
President Barack Obama, the State of Hawaii (the “State”), and Hawaii State
Governor Neil Abercrombie (“Governor Abercrombie”) (collectively
“Defendants”), asserting violations of the Constitution and international law
committed in the overthrow of the Hawaiian monarchy in 1893 and Hawaii’s
subsequent annexation by the United States. Plaintiff seeks injunctive and
declaratory relief (1) declaring Defendants’ actions void such that the Hawaii
government is restored back to the Kingdom of Hawaii; and (2) prohibiting
Defendants from selling public lands within Hawaii, which were ceded by the
Republic of Hawaii to the United States upon annexation.
Currently before the court is the State’s and Governor Abercrombie’s
(“State Defendants”) Motion to Dismiss, Doc. No. 9, in which they argue, among
other things,1 that the court lacks subject matter jurisdiction because the Complaint
raises the nonjusticiable political question as to the validity of Hawaii as a state of
the United States. Plaintiff filed an Opposition on May 20, 2014, Doc. No. 18, and
State Defendants filed a Reply on May 27, 2014, Doc. No. 19. Pursuant to Local
Rule 7.2(d), the court determines this Motion without a hearing, and GRANTS
State Defendants’ Motion to Dismiss.
II. STANDARD OF REVIEW
A motion to dismiss based on the political question doctrine raises the
court’s subject matter jurisdiction and is therefore properly viewed under Federal
Rule of Civil Procedure 12(b)(1). See Corrie v. Caterpillar, Inc., 503 F.3d 974,
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Because the court finds that it lacks subject matter jurisdiction, the court does not
address State Defendants’ additional arguments for dismissal.
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982 (9th Cir. 2007) (construing motion seeking dismissal on the basis that the
action raised a political question as a Rule 12(b)(1) motion).
Under Rule 12(b)(1), a defendant may challenge the plaintiff’s
jurisdictional allegations in one of two ways, “facial” or “factual.” Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A “facial” attack, as is
the case here, accepts the truth of the plaintiff’s allegations but asserts that they
“are insufficient on their face to invoke federal jurisdiction.” Id. The court
resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6):
Accepting the plaintiff’s allegations as true and drawing all reasonable inferences
in the plaintiff’s favor, the court determines whether the allegations are sufficient
invoke the court’s jurisdiction. Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir.
2013).
III. ANALYSIS
State Defendants argue that this action raises a nonjusticiable political
question -- i.e., whether the overthrow of the Hawaiian Kingdom was wrongful
such that Hawaii is not a valid state of the United States. The court agrees that it
lacks subject matter jurisdiction.
Under the political question doctrine, “[t]he conduct of the foreign
relations of our government is committed by the Constitution to the executive and
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legislative [branches] . . . and the propriety of what may be done in the exercise of
this political power is not subject to judicial inquiry or decision.” Corrie, 503 F.3d
at 982 (quoting Oetjen v. Cent. Leather Co., 246 U.S. 297, 302 (1918)); see also
Koohi v. United States, 976 F.2d 1328, 1331 (9th Cir. 1992) (“The political
question doctrine serves to prevent the federal courts from intruding unduly on
certain policy choices and value judgments that are constitutionally committed to
Congress or the executive branch.”). The court does not lack jurisdiction,
however, “merely because [a] decision may have significant political overtones.”
Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986). Indeed, it
is “error to suppose that every case or controversy which touches foreign relations
lies beyond judicial cognizance.” Baker v. Carr, 369 U.S. 186, 211 (1962).
The “classic” political question case, Luther v. Borden, 48 U.S. 1
(1849), addressed claims under the Guarantee Clause of the Constitution,2 where
two rival governments disputed which was the lawful government of Rhode Island.
See also Massachusetts v. Laird, 400 U.S. 886, 895 n.4 (1970) (discussing Luther).
Luther held that “it rests with Congress,” not the judiciary, “to decide what
government is the established one in a State.” 48 U.S. at 42. Luther explained:
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The Guarantee Clause directs the federal government to “guarantee to every State in
this Union a Republican Form of Government,” U.S. Const. Art. IV, § 4.
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[W]hen the senators and representatives of a State are
admitted into the councils of the Union, the authority of
the government under which they are appointed, as well
as its republican character, is recognized by the proper
constitutional authority. And its decision is binding on
every other department of the government, and could not
be questioned in a judicial tribunal.
Id.
The political question doctrine has since been applied to a number of
different cases, and Baker v. Carr, 369 U.S. 186 (1962), identifies six independent
factors, any one of which demonstrates the presence of a nonjusticiable political
question:
[1] a textually demonstrable constitutional commitment
of the issue to a coordinate political department; or [2] a
lack of judicially discoverable and manageable standards
for resolving it; or [3] the impossibility of deciding
without an initial policy determination of a kind clearly
for nonjudicial discretion; or [4] the impossibility of a
court’s undertaking independent resolution without
expressing lack of the respect due coordinate branches of
government; or [5] an unusual need for unquestioning
adherence to a political decision already made; or [6] the
potentiality of embarrassment from multifarious
pronouncements by various departments on one question.
369 U.S. at 217. Determining whether a case involves a nonjusticiable political
question requires a “discriminating inquiry into the precise facts and posture of the
particular case,” id., and an “evaluation of the particular question posed, in terms
of the history of its management by the political branches, of its susceptibility to
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judicial handling in light of its nature and posture in the specific case, and of the
possible consequences of judicial action.” Id. at 211-12.
The entire basis of Plaintiff’s Complaint is that the overthrow of the
Hawaii Kingdom and Hawaii’s annexation to the United States violated the United
States Constitution and international law such that this court should declare these
acts void and restore the Kingdom of Hawaii. These issues are squarely nonjusticiable political questions -- as in Luther, “it rests with Congress,” not the
judiciary, to decide the governance of Hawaii, see Luther, 48 U.S. at 42, and both
the Supreme Court and the Ninth Circuit have already determined, in a number of
other contexts, that issues of sovereignty and/or recognition of foreign entities are
not for the judiciary to determine. See Baker, 369 U.S. at 212 (stating that
“recognition of foreign governments . . . strongly defies judicial treatment . . . and
the judiciary ordinarily follows the executive as to which nation has sovereignty
over disputed territory”); Jones v. United States, 137 U.S. 202, 212 (1890) (“Who
is the sovereign, de jure or de facto, of a territory, is not a judicial, but a political,
question, the determination of which by the legislative and executive departments
of any government conclusively binds the judges, as well as all other officers,
citizens, and subjects of that government.”); Wang v. Masaitis, 416 F.3d 992, 995
(9th Cir. 2005) (“China’s sovereignty over Hong Kong (and by corollary Hong
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Kong’s sub-sovereign status) has been resolved by the executive branch, and we do
not question that judgment.”); Kahawaiolaa v. Norton, 386 F.3d 1271, 1275-76
(9th Cir. 2004) (“If the question before us were whether a remedy would lie against
Congress to compel tribal recognition, the answer would be readily apparent . . . .
A suit that sought to direct Congress to federally recognize an Indian tribe would
be non-justiciable as a political question.”).
And cases presented with this same issue -- the constitutionality of
Hawaii’s annexation -- have persuasively explained that a number Baker factors
apply to this issue. For example, in Sai v. Clinton, 778 F. Supp. 2d 1 (D.D.C.
2011), aff’d sub. nom., Sai v. Obama, 2011 WL 4917030 (D.C. Cir. Sept. 26,
2011), the plaintiff sought a declaration that his Hawaii theft conviction violated
federal and international law because Hawaii is not a valid state. Id. at 2-3.
Rejecting this argument, Sai explained:
Plaintiff’s lawsuit challenges the United States’s
recognition of the Republic of Hawaii as a sovereign
entity and the United States’s exercise of authority over
Hawaii following annexation. However, “[t]he conduct
of the foreign relations of our Government is committed
by the Constitution to the Executive and Legislative -‘the political’ -- Departments of the Government, and the
propriety of what may be done in the exercise of this
political power is not subject to judicial inquiry or
decision.” Oetjen v. Cent. Leather Co., 246 U.S. 297,
302 (1918). In addition, the Constitution vests Congress
with the “Power to dispose of and make all needful Rules
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and Regulations respecting the Territory or other
Property belonging to the United States.” U.S. Const.,
Art. IV, § 3, cl. 2. Therefore, there is a textually
demonstrable constitutional commitment of these issues
to the political branches. Furthermore, it would be
impossible for this Court to grant the relief requested by
Plaintiff without disturbing a judgment of the legislative
and executive branches that has remained untouched by
the federal courts for over a century. Since its annexation
in 1898 and admission to the Union as a State in 1959,
Hawaii has been firmly established as part of the United
States. The passage of time and the significance of the
issue of sovereignty present an unusual need for
unquestioning adherence to a political decision already
made.
Id. at 6-7.
Similarly, in Williams v. United States, 2008 WL 5225870 (D. Haw.
Dec. 15, 2008), United States District Chief Judge Susan Oki Mollway determined
the court lacked jurisdiction over an inmate’s civil rights claims challenging the
legality of the overthrow of the Kingdom of Hawaii and Hawaii’s admission as a
state to the United States, explaining:
Plaintiff’s claims raise nonjusticiable political questions
because they involve matters that have been
constitutionally committed to Congress. Under Article
IV, Section 3 of the Constitution, “[n]ew States may be
admitted by the Congress into this Union[.]” U.S. Const.
art. IV, § 3. By an act of Congress, Hawaii was admitted
to the Union in 1959. This court, therefore, lacks
jurisdiction to decide any issue regarding the legality of
Hawaii’s statehood including the lawfulness of events
leading to statehood.
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Id. at *3; See also Algal Partners, L..P. v. Santos, 2014 WL 1653084, at *2-3 (D.
Haw. Apr. 23, 2014) (Kobayashi, J.) (adopting reasoning in Williams to decline
jurisdiction over assertion that “the Hawaiian Kingdom continues to exist and is
under a prolonged and illegal occupation by the United States”). The court joins
these cases finding that this court lacks jurisdiction to address claims challenging
the legality of Hawaii’s annexation.
In opposition, Plaintiff argues that the political question doctrine does
not apply to this action given that numerous cases have addressed the annexation
of Hawaii, and the application of United States laws to U.S. territories generally.
See Doc. No. 18, Pl.’s Opp’n at 3-4. Plaintiff confuses cases raising the validity of
Hawaii’s annexation (such as in Sai and Williams), with cases in which Hawaii’s
annexation is not itself challenged but instead merely part of the historical
background of the case. See, e.g., Hawaii v. Office of Hawaiian Affairs, 556 U.S.
163, 172-73 (2009) (holding that the Apology Resolution did not strip Hawaii of
its sovereign authority to alienate the lands the United States held in absolute fee
and granted to the State upon its admission to the Union); Rice v. Cayetano, 528
U.S. 495, 505 (2000) (explaining history of Hawaii as background in determinng
that limiting voting for elected Office of Hawaiian Affairs trustees to Native
Hawaiians violated the Fifteenth Amendment); Doe v. Kamehameha Sch./Bernice
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Pauahi Bishop Estate, 470 F.3d 827, 831 (9th Cir. 2006) (discussing history of
Hawaii as background for determining that private, non-profit school that receives
no federal funds did not violate 42 U.S.C. § 1981 in preferring Native Hawaiians in
its admissions policy).
For example, Arakaki v. Lingle, 477 F.3d 1048 (9th Cir. 2007),
rejected that the political question doctrine applied to an action challenging on
equal protection grounds various state programs which gave preferential treatment
to persons of Hawaiian ancestry. Arakaki explained: “Nothing in the claims
Plaintiffs have asserted or the remedy they seek invites the district court to exercise
powers reserved to Congress or to the President. The district court has not been
asked to declare tribal status where Congress has declined.” Id. at 1068; see also
Wang, 416 F.3d at 995 (“China’s sovereignty over Hong Kong (and by corollary
Hong Kong’s subsovereign status) has been resolved by the executive branch, and
we do not question that judgment. However, this court may examine the resulting
status of Hong Kong, and decide whether the Treaty Clause applies to Hong Kong
as a constitutionally cognizable treaty party.”). In comparison to Arakaki and the
cases cited by Plaintiff, the entire basis of this action is for the court to declare
Hawaii’s annexation null and void, which is a power not vested with the judiciary.
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In sum, the court easily concludes that this action presents a
nonjusticiable political question on which this court lacks jurisdiction. The court
therefore GRANTS State Defendants’ Motion to Dismiss. Because subject matter
jurisdiction is an issue the court must raise sua sponte, see Kwai Fun Wong v.
Beebe, 732 F.3d 1030, 1036 (9th Cir. 2013), and Fed. R. Civ. P. 12(h)(3), and
because this action presents a nonjusticiable political question as to all Defendants,
this dismissal is as to all Defendants.
IV. CONCLUSION
For the foregoing reasons, the court GRANTS State Defendants’
Motion to Dismiss, and dismisses this action as to all Defendants. The Clerk of
Court is directed to close this action.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 4, 2014.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
Yellen v. United States et al., Civ. No. 14-00134 JMS-BMK, Order Granting State of Hawaii and
Governor Abercrombie’s Motion to Dismiss, Doc. No. 9
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