Protecting Hawaii’s Sacred Temple — Mauna Kea
Jim Albertini Motion for Dismissal to be heard in Waimea Court Thursday, Jan. 21st at 9AM by Judge Takasse
further contact: Jim Albertini Malu ‘Aina Center For Non-violent Education & Action P.O. Box 489 Ola’a (Kurtistown) Hawai’i 96760 Phone 808-966-7622 Email ja@malu-aina.org www.malu-aina.org
Motion for Dismissal is below and attached
James V. Albertini
P.O. Box 489
Kurtistown, Hawaii 96760
Tel. No. (808) 966-7622
Email: ja@malu-aina.org
pro se Defendant
IN THE DISTRICT COURT OF THE THIRD CIRCUIT
HAMAKUA DIVISION
STATE OF HAWAII
STATE OF HAWAII ) Case No. 3DCW 15-0001067
Plaintiff )
) April 2, 2015 arrest on Mauna Kea
vs. )
)
JAMES V. ALBERTINI )
)
Defendant )
MOTION FOR DISMISSAL
Pro se Defendant James V. Albertini, hereby requests the court to Dismiss with prejudice charges for
my arrest on April 2, 2015 on Mauna Kea Access Rd at the visitor cross walk. On April 2, 2015 I was
charged with obstruction of a roadway 711-1105 in an attempt to stop the imminent desecration of
Hawaii’s most sacred temple – –Mauna a Wakea by Thirty Meter Telescope (TMT) construction crews
and equipment that the Hawaii State Supreme Court ruled on Dec. 2, 2015 was taking place without a
valid permit. It is one of five of the defendants contentions that the Hawaii Supreme Court’s unanimous
decision thereby constituted a legal privilege to stop the illegal construction of TMT and the
desecration of Mauna a Wakea and the charges in this case should be dismissed against me.. Other
points of contention in support of this motion for dismissal are included in the following attachment.
Dated: Hilo, Hawaii, December 28, 2015
By: ________________________
James V. Albertini, Pro se
ATTACHMENT By James V. Albertini Dated Hilo, Hawaii December 28, 2015
The Defendant hereby provides a summary of reasons why the charges should be dismissed.
1. On Dec. 2, 2015 The Hawaii Supreme Court (HSC) ruled 5-0 (SCAP-14-0000873 Civ. No. 13-1-0349) that the TMT CDUA permit is void, because the BLNR granted the permit prior to a contested case ruling, thereby violating the constitutional due process rights of people opposing the construction of TMT. The Supreme Court Chief Justice Mark Recktenwald said: “Quite simply, the board put the cart before the horse when it issued the permit before the request for a contested case hearing was resolved and the hearing was held.” The court also said “the board (of Land and natural Resources) acted in contravention of the protections of Native Hawaiian customs and traditions.” I understand that the word contravention means “violation, infringement, breach, to disobey.”
The April 2, 2015 obstruction charges should be dismissed because the protectors were exercising first amendment rights to assemble and protest an illegal act from causing imminent desecration (711-1107) to Hawaii's most sacred temple --Mauna a Wakea. The HSC decision in essence conveys a legal privilege to stop illegal construction of TMT.
The TMT illegal permit had everything to do with the charges of obstructing a roadway for which the Mauna Kea protectors have been charged. If TMT had not been attempting to irreparably damage and desecrate sacred Mauna Kea with bulldozers, Mauna Kea protectors would not have been gathering to protest that desecration and to protect the Mauna. ( “Choice of Evils” under 703-302 )
Had the TMT consortium waited until the Supreme Court could decide the appeal, the status quo would have been maintained and no confrontation would have ensued. TMT chose to initiate construction while litigation was still pending. The validity of the permit was the central issue in the appeal. TMT created the confrontation in April and in June by its premature initiation of construction. And they did so with the advice of the Attorney General, the Governor, the BLNR, University officials, Office of Mauna Kea Management, all of whom, along with TMT officials, should be held accountable for desecration (711-1107) of Hawaii's most sacred temple – Mauna a Wakea. I look to this prosecutor and this court and ask --When will such charges be brought?
The choice presented to the Protectors of the Mountain was to either allow the construction to go forward based on a permit granted in violation of the Protectors’ constitutional rights or engage in non-violent peaceful protest to protect the Sacred Mauna. Clearly there was No Criminal intent - Those who acted to protect the Mauna had a sincere belief that the construction permit was illegally issued and that the bulldozing and construction constituted imminent desecration under 711-1107
An analogy. A house is on fire. A person breaks into the house because they think that someone is trapped inside. The person is arrested and charged with breaking and entering and/or trespassing. If the person truly believed that there was someone trapped inside, the person would lack the necessary criminal intent to be charged with a crime. If it turned out that there really was someone trapped inside, the charges would clearly be dropped. The Protectors took that first step of peaceful assembly in the Mauna Kea Visitors Center in prayer, chant, song in the belief that a crime was going to be committed by TMT construction crews. The Supreme Court then ratified that belief by declaring the construction illegal.
Another analogy: Once slavery was declared illegal, would any prosecutor or court continue to prosecute former slaves on runaway slave charges during the time slavery was still considered legal?
2. When DLNR emergency rules were rushed through in July and were later declared illegal by the courts, the charges were dropped against people arrested under those rules. Now the Supreme Court ruled the DLNR issued permit for TMT was illegal. It follows that the arrests for obstructing the illegal desecration of Mauna Kea should be ruled illegal as well and the charges should be dismissed.
I understand there is a legal principle "Void ab initio" which means “Void from the beginning.” Invalid from the getgo. The permit being thrown out as invalid relates back to the time of the arrest. The arrest is invalid. The HSC decision, in essence, constitutes legal privilege to stop TMT illegal construction. Throw out the arrests too. Put another way. If the tree of justice is poisoned, it's fruit is poisoned as well.
The Supreme Court decision makes clear the BLNR wrongfully concluded that there was no issue regarding the traditional Hawaiian faith considering Mauna a Wakea a sacred site. The Supreme Court opinion addresses the need for the BLNR to protect Hawaiian traditional culture and spiritual practices. If the faith assertion that the Mountain is sacred had been accepted as legitimate, then the construction constituted desecration. Again, with law enforcement facilitating, rather then preventing, a crime from being committed, citizen law enforcement was necessary and appropriate.
3. The peaceful, prayerful, gathering of Mauna Kea Protectors on April 2, 2015, of which I was apart, does not constitute obstructing for the following reasons:
A. In DVD #1 provided by the prosecution, video clearly shows vehicles passing through the gathering at 6:38 and 14:22 of the video before any arrests were made Also clear in the video was the spiritual nature of the gathering with prayer, chanting (14:40), speakers, signs to protect the sacred including the large sign which read “Bulldoze your own Temple.”
B. In video #2 provided by the prosecution pu blowing can be heard, Ti leaves and Kapu Aloha signs are visible. And the words “Pule kakou” “Let us Pray” (2:14) then chanting can be heard and people raise their hands up facing the Mauna. People speak about the Gods and Goddesses, the waters of life, and the religious right to protect the mountain (9:04). Clearly this is a religious assembly to protect the mountain. Then Captain Sherlock speaks (10:36) but the content can't be heard on the tape. At no time did police attempt to get TMT vehicles past the first amendment assembly of protectors prior to arrests commencing at 14:12) In the commentary to 711-1105 Obstructing (attached), it is made clear that the police have a duty to respect first amendment rights and seek ways to have vehicles move through or around the right of people to assemble and speak. Failure by the police to make any attempt to do so should result
in the charge being dismissed. Clearly in the commentary, the legislature put the burden on the police to make such attempts. No reasonable attempts by police were made.
4. Procedural due process point. A. Pedestrians in a marked crosswalk have a legal right of way. B. On April 2, 2015 I kept walking in prayer in the marked crosswalk from one side of the road to the other side. Walked off the road then back again in the marked crosswalk.. Chanting by Native Hawaiians filled the air. C. At no time did a police officer come and say stop to let a vehicle pass. D. Prior to arrest, at no point did any TMT vehicles attempt to pass the crosswalk prayer line. Other vehicles as previously noted, did pass through going mauka and makai and some are shown in the prosecutor's videos turned over to me and introduced as evidence (Prosecutor video #1)
5. Finally, it is my assessment that the prosecution of Mauna Kea protectors has been very political from Day One.. It appears that Gov. David Ige and DLNR have been getting very poor legal advice from Attorney General, Douglas Chin, who gave the green light for construction to proceed back in March /April, again in June, and again on Nov. 20. Protectors stopped the construction in March and April and again in June by peaceful protest The Supreme Court stopped it temporarily on Nov. 20th and again on Dec. 2 with its unanimous decision voiding the TMT permit.
Governor. Ige. Attorney General Chin and the DLNR appeared more concerned about the financial interests of TMT than about justice ---- due process, first amendment rights, respecting Hawaiian religious and cultural practices and Hawaii's most sacred temple.
It's a sad day when elected and appointed officials have to be checked by citizen nonviolent direct action to protect sacred sites. Under such a cloud of official corruption, State officials give the green light for agencies like the DLNR to become a rogue agency -- promoting desecration, instead of protecting sacred sites and Hawaiian rights.
There are many additional legal issues that could be argued here including the invalid lease to the University and TMT by illegal entities like the BLNR; the entire jurisdictional issue and land titles following the 1875 Reciprocity Treaty and the 1893 illegal overthrow of the Kingdom of Hawaii by the U.S. But I will leave these important questions for other more knowledgeable and scholarly people to argue.
For the record, I want to note my spiritual background. I have 17 years of Catholic education. I studied Theology at a Catholic University and I am a graduate of Villanova University. I taught theology in the Catholic school systems of Pennsylvania and Hawaii. In 2010 I was named by the Pax Christi USA, a national Catholic organization, as their Teacher of Peace, an award presented to one person annually in the U.S. This award was presented to me for my work as Director of Malu 'Aina Center for Non-violent Education & Action. In 2012, on behalf of our organization, I was given The Interfaith Alliance Hawaii Encouraging Non-violent Civic Participation Award. For the past 35 years our organization has been growing food to share with people in need and to support work for justice, peace and aloha 'aina education. During these years growing a wide variety of organic fruits and vegetables, including more than 30 kalo varieti
es, I have come to appreciate, respect, and embrace Hawaiian spirituality. When we take care of the land, the land takes care of us. The meaning of 'aina is not a commodity to be bought and sold for profit. The meaning of 'aina is that which feeds us. It's a daily practice of being connected to the land and the spirit of life which comes from the land. Many years ago at Malu Aina we built an ahu (Hawaiian altar) on the boundary of the Keaau and Ola'a ahupu'a'a. We built that ahu where we place first fruit offerings in thanksgiving for the land that feeds us. So it was only natural that I would go to Mauna Kea to stand in solidarity with others in a deeply spiritual gathering to pray and protect the sacred Mauna from further desecration by the building of the 18 story $1.4 billion dollar Thirty-Meter-Telescope (TMT). I have joined with Native Hawaiians and others on numerous occasions over the years in spiritual ceremonies on the mountain. In ten prior years when I lived and ta
u
ght school on Oahu I stood in solidarity with Native Hawaiians seeking to protect their lands at Kalama Valley, Makua Valley, Waiahole-Waikane, Mokapu, Sand Island, Hale Mohalu and Kaho'olawe.
IN CONCLUSION: TMT no longer has any legitimate right to proceed with construction on sacred Mauna a Wakea. Should prosecution continue for those charged with obstruction of TMT construction vehicles and equipment? Am I now going to be convicted and sentenced for a crime that no longer exists? I again ask that the charges against me be dismissed. Mahalo and aloha.
James V. Albertini
Dec. 28, 2015 Hilo, Hawaii
http://www.capitol.hawaii.gov/hrscurrent/Vol14_Ch0701-0853/HRS0711/HRS_0711-1105.htm
§711-1105 Obstructing. (1) A person commits the offense of obstructing if, whether alone or with others and having no legal privilege to do so, the person knowingly or recklessly:
(a) Obstructs any highway or public passage; or
(b) Provides less than thirty-six inches of space for passage on any paved public sidewalk.
(2) A person in a gathering commits the offense of obstructing if the person refuses to obey a reasonable request or order by a law enforcement officer:
(a) To move to prevent or to cease any activity prohibited under subsection (1); or
(b) To move to maintain public safety by dispersing those gathered in dangerous proximity to a public hazard.
(3) An order to move under subsection (2)(a), addressed to a person whose speech or other lawful behavior attracts an obstructing audience, is not reasonable if the obstruction can be readily remedied by police control.
(4) A person is not guilty of violating subsection (1) solely because persons gather to hear the person speak or because the person is a member of such a gathering.
(5) Obstructing is a petty misdemeanor if the person persists in the conduct specified in subsection (1) after a warning by a law enforcement officer; otherwise it is a violation. [L 1972, c 9, pt of §1; gen ch 1993; am L 2001, c 91, §4; am L 2014, c 51, §1]
COMMENTARY ON §711-1105
Although obstructing was formerly covered by the disorderly conduct statute, it raises certain important problems which indicate that it should have separate treatment. Primarily the problems relate to free speech and types of expressive conduct which, under the aegis of free speech, are constitutionally protected. Normally, the act of obstructing a public highway presents a great public inconvenience and serves no useful purpose. However, where the obstruction is caused by a crowd listening to a speaker, or even by a crowd protesting some official action, important goals are served by leaving the group as free from restriction as possible. The proposed section accomplishes these objectives.
Subsection (1) defines obstructing as knowing or reckless obstruction of any highway or public passage. “Obstructs” is defined in §711-1100 as “renders impassable without unreasonable inconvenience or hazard.” This conduct constitutes a violation, and if the defendant fails to heed a warning by a peace officer, it may be treated as a petty misdemeanor. However, subsection (4) makes clear that a person does not violate subsection (1) solely because of the fact that people gather to hear the person speak, or because the person is a member of such a gathering.
Subsection (2) is intended to allow reasonable control by peace officers of a public gathering which obstructs highways or which is dangerously close to a public hazard, such as a flood. A person who fails to heed a reasonable request by a peace officer in such circumstances is guilty of a violation. However, subsection (3) declares that a person engaged in speech or other lawful behavior which attracts an obstructing crowd cannot be asked to move if the obstruction can be readily remedied by police control.
Previous Hawaii law treated obstruction as a part of disorderly conduct.[1] The prior statute recognized and protected the rights of the speaker, but it seems insufficient in that it did not protect the rights of the listening audience. The Code attempts to remedy this point.
SUPPLEMENTAL COMMENTARY ON §711-1105
Act 51, Session Laws 2014, amended subsections (1) and (2) by specifying that a person: (1) commits the offense of obstructing, whether alone or with others, if the person having no legal privilege to do so knowingly or recklessly provides less than thirty-six inches of space for passage on any paved public sidewalk; and (2) in a gathering, commits the offense if the person refuses to obey a reasonable request or order by a law enforcement officer to move to prevent or to cease any activity that would obstruct a highway or public passage, or provide less than thirty-six inches of space for passage on any paved public sidewalk. Senate Standing Committee Report No. 3161.
__________
§711-1105 Commentary:
COURT DECISION:
PDF: Majority OpinionPDF: Concurring Opinion
COVERAGE:
NYT: Hawaii Court Rescinds Permit to Build Thirty Meter TelescopeHNN: "We're talking about at least a year if not more,"WHT: Court voids TMT permit; Justices fault DLNR for granting approv
al prior to contested case hearingKHON: Hawaii Supreme Court invalidates permit to build Thirty Meter TelescopeSA: ‘Back to square one’ for TMTCB: Hawaii Supreme Court Invalidates Thirty Meter Telescope PermitAP:
Court voids permit for construction of Thirty Meter TelescopePBN: Hawaii Supreme Court vacates Thirty Meter Telescope permit
Amendment 1 of the U.S. Constitution, Freedom of Religion, Press, Expression.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Article XII, Section 7. The Constitution of the State of hawaii traditional and customary rights.
The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua'a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.
Exhibit A. Leaflet entitled “Holy Week 2015” written by Jim Albertini on March 31, 2015 for distribution at the Malu 'Aina Friday, April 3, 2015 (Good Friday) weekly Peace Vigil in downtown Hilo. April 3, 2015 was the 706th consecutive weekly Hilo Peace vigil. Each week Jim Albertini writes a new leaflet.
Exhibit B. Leaflet entitled “TMT on Mauna Kea: One More for the Road!” written by Jim Albertini on Feb. 23, 2011 and submitted as testimony to the BLNR opposing issuing a permit (later declared invalid by the Hawaii Supreme Court on Dec. 2, 2015) for construction of the TMT atop Mauna Kea. This testimony was used as the Feb. 25, 2011 Hilo Friday Peace Vigil leaflet, the very day the BLNR was meeting to decide whether to issue such a permit.
