Alexander & Baldwin , LLC v. Armitage. ( 2022 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
05-APR-2022
08:17 AM
Dkt. 50 OP
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---
ALEXANDER & BALDWIN, LLC, a Hawai‘i limited liability company,
Respondent/Plaintiff-Appellee,
vs.
NELSON ARMITAGE, SR.,
Petitioner/Defendant-Appellant,
and
WAYNE ARMITAGE; FREDERICK TORRES-PESTANA, also known as RIKI
TORRES-PESTANA; and KINGDOM OF HAWAI‘I, also known as REINSTATED
LAWFUL HAWAIIAN GOVERNMENT, also known as LAWFUL HAWAIIAN
GOVERNMENT, also known as REINSTATED HAWAIIAN GOVERNMENT, also
known as REINSTATED HAWAIIAN NATION, also known as REINSTATED
HAWAIIAN KINGDOM, an unincorporated association,
Respondents/Defendants-Appellants,
and
ROBERT ARMITAGE, also known as BOBBY ARMITAGE; JAMES AKAHI, also
known as AKAHI NUI, also known as MAJESTY AKAHI NUI, also known
as JAMES AKAHI NUI, also known as ROYAL MAJESTY AKAHI NUI,
Executor/Trustee of the Kingdom of Hawai‘i Nation Ministry Trust;
and KINGDOM OF HAWAI‘I NATION MINISTRY TRUST, also known as
KINGDOM OF HAWAI‘I, an unincorporated association,
Respondents/Defendants-Appellees.
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SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CIV. NO. 13-1-1065)
APRIL 5, 2022
RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.
OPINION OF THE COURT BY RECKTENWALD, C.J.
I. INTRODUCTION
Beginning in 2011, Nelson Armitage (Armitage) and a
group of others that included Robert Armitage, Wayne Armitage,
and Frederick Torres-Pestana (collectively, individual
defendants) entered onto and occupied land belonging to
Alexander & Baldwin, LLC (A&B) in Maui. They purported to act
on behalf of an organization called the Reinstated Hawaiian
Nation. A&B sued seeking a writ of ejectment, damages, and
preliminary and permanent injunctions barring them from entering
any property owned by A&B. In addition to the individual
defendants, A&B also sued the Reinstated Hawaiian Nation by
various names.
Throughout the proceedings, Armitage, and Henry Noa,
who was not a party, defended the Reinstated Hawaiian Nation as
foreign minister and prime minister, respectively. In short,
they acted as lawyers would in representing the interests of the
Reinstated Hawaiian Nation. The circuit court granted summary
judgment to A&B and entered the requested injunction. The
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defendants appealed, with Armitage and Noa again purporting to
represent the Reinstated Hawaiian Nation.
The Intermediate Court of Appeals (ICA) dismissed the
appeal as to the Reinstated Hawaiian Nation, reasoning that, as
non-attorneys, Armitage and Noa could not represent its interest
before that court. However, the ICA addressed Armitage’s appeal
individually and rejected each of his substantive points of
error. Armitage sought review before this court. Although he
abandons his substantive points of error, he asserts that if the
ICA was correct that his representation of the Reinstated
Hawaiian Nation was improper and merited dismissal of the
appeal, then, for the same reason, the circuit court’s judgment
must be vacated as to the Reinstated Hawaiian Nation.
We agree. In doing so, we reject a rule that would
automatically render a nullity any judgment obtained as a result
of the improper participation of a non-attorney representative,
but nevertheless hold that the judgment against the Reinstated
Hawaiian Nation must be voided. The public policy behind the
prohibition on the unauthorized practice of law requires us to
vacate the circuit court’s judgment as to the Reinstated
Hawaiian Nation. However, we do not vacate the judgment against
Armitage or any other defendant.
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II. BACKGROUND
A. Circuit Court Proceedings
On November 26, 2013, A&B filed a complaint for
preliminary and permanent injunctions in the circuit court
against Armitage and his codefendants for entering and occupying
land owned by A&B in Maui. In addition to the individual
defendants, A&B named the Reinstated Hawaiian Nation in its
complaint.1 A&B sought damages and an order of ejectment along
with preliminary and permanent injunctions against Armitage and
1 The complaint named the Reinstated Hawaiian Nation as “KINGDOM OF
HAWAI’I, also known as REINSTATED LAWFUL HAWAIIAN GOVERNMENT, also known as
LAWFUL HAWAIIAN GOVERNMENT, also known as REINSTATED HAWAIIAN GOVERNMENT,
also known as REINSTATED HAWAIIAN NATION, also known as REINSTATED HAWAIIAN
KINGDOM, an unincorporated association.” The organization filed a motion to
dismiss the complaint, identifying itself as “Reinstated Hawaiian
Government.” However, in its opening brief before the ICA, it identified
itself as the Reinstated Hawaiian Nation, and the ICA addressed it as such.
See Alexander & Baldwin, LLC v. Armitage, 146 Hawai‘i 232, 459 P.3d 791, 2020
WL 1227517, at *1 (App. Mar. 12, 2020). For clarity, we use the same
terminology as the ICA and the opening brief.
According to the appellants’ opening brief, the Reinstated
Hawaiian Nation was established on March 13, 1999:
[F]ollowing the failure of the State of Hawaii to
accomplish the intent of Act 359 (1993), loyalists to Queen
Lili[ʿ]uokalani and citizens of the Kingdom of Hawaii,
. . . exercised their “perfect right” . . . to re-instate
their inherent and LAWFUL Hawaiian Government, which had
been suspended in an ACT OF WAR, by the ARMED FORCE of the
UNITED STATES OF AMERICA, on January 17, 1893.
Therefore, the Lawful [Reinstated] Hawaiian
Government [], that has been in existence since March 13,
1999, nearly 17 years and recently completed their 41st
Manakau Kanawai (The convening of the Legislature), is the
lawfully created native Hawaiian Government of native
Hawaiians, as it is a self-determining government of their
own choosing, pursuant to International Law, U.S. Law, and
even Hawaii Law pursuant to Act 359 of 1993.
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his codefendants enjoining them from entering the land as well
as all other property owned by A&B.
According to A&B’s first amended complaint, Armitage
and his codefendants entered and occupied three parcels
belonging to A&B beginning in 2011. They put up the Hawaiian
flag and signs declaring the land to be under the jurisdiction
of the lawful Hawaiian government and began constructing an ahu,
a traditional stone land marker or cairn. They also cleared
land and conducted unpermitted commercial activities that
resulted in citations against A&B. During the trespass,
Armitage represented himself to A&B as the “Minister of Foreign
Affairs of the Hawaiian Kingdom” and claimed ownership of the
land by virtue of a kingdom registry.
Throughout the proceedings that followed, Armitage and
Noa participated extensively as representatives of the
Reinstated Hawaiian Nation. While Armitage sometimes identified
himself in filings only as “NELSON ARMITAGE, Pro Se,” he signed
other filings as foreign minister of the Reinstated Hawaiian
Nation. Noa was not a defendant, although he was sometimes
referred to as a defendant pro se and sometimes represented
himself as such. Both filed motions and responded to A&B’s
motions. For example, Noa filed a motion to dismiss A&B’s
complaint signed only by him, above the signature line,
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“REINSTATED HAWAIIAN GOVERNMENT[,] By its Prime Minister, Henry
Noa.” Armitage and Noa filed witness lists and made objections
to evidence, conducted voir dire for expert witnesses and cross-
examined both expert and fact witnesses during the preliminary
injunction hearing and rehearing, and made oral and written
arguments.2 None of the presiding judges barred Noa and
Armitage, as non-attorneys, from representing the Reinstated
Hawaiian Nation.
At several points throughout the proceedings, Noa’s
status as a non-party – and Armitage’s capacity as a
representative of the Reinstated Hawaiian Nation - became
evident. On January 15, 2014, the circuit court held a hearing
on A&B’s motion for a preliminary injunction. Noa initially
appeared alone and identified himself as a representative of the
Reinstated Hawaiian Nation. Later, he objected to a default
that had been entered against Armitage. The court appeared to
treat Noa as a defendant pro se:
THE COURT: Okay. There’s just no default against you.
MR. NOA: Even against the other parties.
2 Three different judges presided over the case. Originally, the
Honorable Peter T. Cahill presided; however, he recused himself on June 10,
2014. The case was reassigned to the Honorable Rhonda I.L. Loo, but she
recused herself on September 2, 2014. The case was then reassigned to the
Honorable Joseph E. Cardoza, who presided over the remainder of the
proceedings.
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THE COURT: Well, the other parties have to speak for
themselves. I’m not saying I won’t vacate it, but they’ve
got to speak for themselves.
(Emphasis added.)3
Armitage arrived shortly thereafter, and the court
vacated the default against him.
Five days later, on January 29, 2014, the court
reconvened on the preliminary injunction, and Noa and Armitage
again introduced themselves as representatives of the Reinstated
Hawaiian Nation. During the hearing, Noa introduced a “staff
member working with my office, prime minister’s office” whom he
said he had “assigned . . . to speak on my behalf.” The court
responded:
THE COURT: Is he an attorney?
MR. NOA: No, he is not.
THE COURT: Then he can’t speak for you. You don’t need
anybody to speak for you.
MR. NOA: No, your Honor. . . . We are here performing pro
se. We’re doing our best, but at times, our best just
seems to run into these difficulties. . . . I -- you know,
I asked him to advise – be my advisor.
THE COURT: And he can do that.
MR. NOA: Okay. Fantastic.
THE COURT: But he can’t speak for you in court. And, in
fact, his even sitting on that side of the bench is
normally not allowed, but I’ll let you do it because you
wanted him to advise you, he can advise you, but he’s not
an attorney.
3 Later in the same hearing, Noa addressed the court, “Your Honor,
I’m here under pro se. I don’t have the luxury of having A&B’s great lawyers
behind them.” The court responded, in part, “I know,” before changing
subjects.
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Next, on November 19, 2014, Judge Cardoza presiding,4
the circuit court addressed the issue of whether Noa could
represent the interests of others before the court. Noa had
filed a motion to strike entries of default against defendants
Akahi Nui and the Kingdom of Hawai‘i Nation Ministry Trust (an
organization distinct from the Reinstated Hawaiian Nation) as
well as Torres-Pestana. The court questioned Noa: “Now, you’re
essentially putting yourself in a position of representing
someone other than yourself?” The court pointed out that
neither Noa nor Armitage were in default. Regarding Torres-
Pestana’s default, the court ruled:
THE COURT: I’ll tell you what. If he wants to present
something to the Court, he can do that by way of motion.
MR. NOA: At least we know so we can contact him and let
him know. I don’t think the order does include his name,
your Honor. I think it’s very clear that it’s -- you know,
if you look at the order.
THE COURT: That -- the motion does indicate that you’re
acting as a representative of the Reinstated Hawaiian
Kingdom Nation, and that does present some issues relative
to your representation of a -- of another entity.
And, respectfully, although that’s your contention, I
think you’re going to need to consider whether you’re able
to serve as a legal representative of the Reinstated
Hawaiian Kingdom Nation.
I don’t have any problem with you appearing here and
acting on your behalf to oppose A&B’s request. But, at
least based on the record that I have before me, as I’ve
mentioned, number one, you’re not in default, and then the
other thing that I raised earlier was a concern that I
would have if you’re representing yourself as a legal
representative.
MR. NOA: No. I’m not trying to do that, your Honor.
4 After Judges Cahill and Loo recused, Judge Cardoza ordered that
A&B would have to present anew its evidence establishing that it was entitled
to injunctive relief.
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THE COURT: All right. Then I will -- based on all of that,
I’m going to deny the motion. That doesn’t prevent anyone
from coming in here and if they’re in default and asking
the Court for some relief, but that’s not what’s before me
today.
(Emphasis added.)
Lastly, on July 15, 2015, the court held a hearing on
A&B’s motion for summary judgment. After the parties made their
arguments, the court addressed Noa regarding his personal claim
to the contested parcels.5 During this discussion, Noa
acknowledged to the court that he was not a named defendant:
THE COURT: So, Mr. Noa, your -- your -- in part you seem
to be arguing, or I guess collectively you folks seem to be
arguing on behalf of the reinstated Hawaiian government
that the property was conveyed to Victoria Kamamalu and
that you’re descendants of that individual. Are you
arguing that?
MR. NOA: Your Honor, I’d like to just state that we -- we
didn’t enter the court case as the reinstated Hawaiian
nation. It was Alexander & Baldwin that actually provided
that to the Court, okay. And because the party, the party
was made, of which I am a part. I am a part of the
reinstated Hawaiian nation, lawful Hawaiian government,
that I appeared representing that government. Okay.
So kind of not sure as to the question that you are
directing at me, other than to say that, yes, that I have
been representing the lawful Hawaiian government in this
issue and we are not -- as the government, we have not made
a claim to the property at all. I haven’t, as the
5 Noa filed a counterclaim on November 10, 2014 identifying himself
as a defendant and claiming loss of income and revenue in the amount of $100
million as an heir of Victoria Kamamalu, the rightful claimant to the land.
In response to his counterclaim, A&B argued: “While Henry Noa has appeared
in this action as the representative Defendant Reinstated Hawaiian
Government, he was not named individually, and has never received Court
approval to appear and file claims in his individual capacity.” At the
hearing on A&B’s motion, the court acknowledged that Noa was not a named
defendant and orally dismissed the complaint: “Mr. Henry Noa actually is not
a named party in this case, but he has appeared and represented — or appeared
individually and in the capacity that he’s noted, as prime minister of the
[Reinstated Hawaiian Nation].”
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government, okay. So I’ve just been representing the
government since they named us as a party.
. . .
So, I was never -- I was never named in as a
defendant, other than representing the lawful Hawaiian
government, your Honor.
(Emphasis added.)
Throughout the proceedings, A&B argued that it held
title to the contested parcels deriving from Royal Patent Grant
(RPG) 165, granted by King Kamehameha III to M. Kekuanaoa,
father and guardian of Kamamalu, on November 20, 1848. It
adduced expert testimony and introduced exhibits to this effect,
and it called its managers and other personnel to testify to the
trespassing incidents.
Although they challenged A&B’s arguments and evidence,
Noa and Armitage presented no evidence. After A&B rested in the
evidentiary hearings for a preliminary injunction, Armitage and
Noa requested additional time to prepare and present evidence.
But when the court reconvened on October 27, 2014, Armitage,
Noa, and Wayne Armitage rested without calling any witnesses or
presenting evidence.
However, in their cross-examination and arguments, Noa
and Armitage challenged A&B’s chain of title through RPG 165.
In particular, they sought to establish that A&B could not
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produce an original deed of title to RPG 165.6 They also
challenged an April 24, 1850 conveyance of the land described by
RPG 165 to Richard Armstrong by Kekuanaoa, arguing that
Kekuanaoa could not transfer a fee simple title as, under the
Hawaiian translation of the deed, Kekuanaoa held only a life
estate, the remainder being reserved to Kamamalu. And, at
closing arguments, Noa argued that by failing to produce the
original RPG, A&B was attempting to perpetuate a fraud on the
court. Armitage added that the State lacked jurisdiction in
this matter as its authority had been illegitimately substituted
for that of the Hawaiian monarchy.
The circuit court granted summary judgment to A&B and
entered a permanent injunction against Armitage and his
codefendants, naming Noa as “Pro Se representative” of the
Reinstated Hawaiian Nation. It entered an amended final
judgment on September 16, 2016.7
6 Instead, A&B introduced into evidence a certified copy of RPG
165, conveying the subject parcels to Kekuanaoa.
7 The circuit court entered final judgment on November 2, 2015, and
Armitage and Noa filed a pro se notice of appeal. However, the ICA dismissed
the appeal for lack of appellate jurisdiction, noting that although the
November 2 judgment held that there were “no remaining claims” it did not
“specifically identify[] the claim or claims on which the circuit court
intend[ed] to enter judgment.”
In dismissing the appeal, the ICA noted that Noa did not
intervene as a defendant, but rather claimed to represent the Reinstated
Hawaiian Nation. It noted that Hawai‘i law prohibits non-attorneys from
representing other persons or entities before the circuit court. And it
suggested that, although the judgment named Noa, as a nonparty he would not
(continued...)
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B. ICA Proceedings
Armitage, Noa, Wayne Armitage, and Torres-Pestana
filed a pro se notice of appeal from the amended final judgment.
Armitage signed as “Foreign Minister, Defendant, Pro Se”; Noa as
“Prime Minister[,] Defendant, Representing Reinstated Hawaiian
Nation.” The opening brief raised six points of error relating
to the proceedings below and A&B’s claim to the parcels,8 and was
signed by Armitage on his own behalf and by Noa and Armitage as
prime minister and foreign minister of the Reinstated Hawaiian
Nation, respectively.
After the defendants filed their opening brief, A&B
moved to dismiss the appeal or strike the brief as to the
Reinstated Hawaiian Nation on the basis that the brief was filed
by non-attorneys Noa and Armitage. In its memorandum in
(...continued)
be bound by it. See Alexander & Baldwin, LLC v. Armitage, No. CAAP-15-
0000890, 2016 WL 3349070, at *1 n.1 (App. June 14, 2016) (citing Oahu
Plumbing & Sheet Metal, Ltd. v. Kona Constr. Inc., 60 Haw. 372, 377, 590 P.2d
570, 574 (1979)).
8 Those points of error were: (1) Judge Loo erred when she failed
to certify familiarity with the underlying action pursuant to Hawai‘i Rules of
Civil Procedure (HRCP) Rule 63 (2000) and held a hearing despite having a
conflict of interest in the matter; (2) Judge Loo abused her discretion when
she granted A&B’s ex parte motion for a temporary restraining order (TRO)
after having recused herself; (3) Judge Loo erred by granting the TRO despite
having a conflict of interest in the matter; (4) Judge Cardoza erred when he
failed to certify familiarity with the underlying action pursuant to HRCP
Rule 63 prior to accepting the case; (5) Judge Cardoza abused his discretion
when he prevented Armitage from challenging the validity of A&B’s evidence
regarding ownership of the contested parcels; and (6) Judge Cardoza erred in
granting A&B’s motion for summary judgment because A&B failed to show it had
clear and unbroken title to the contested parcels.
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support, A&B argued that Noa “is not a named party to this
action,” and as non-lawyers, neither Noa nor any of the
defendants could represent the Reinstated Hawaiian Nation. A&B
contended that representation of a corporation by a non-lawyer
constitutes the unauthorized practice of law, citing Oahu
Plumbing & Sheet Metal, Ltd. v. Kona Construction, Inc., 60 Haw.
372, 590 P.2d 570 (1979). A&B noted that a court has inherent
power to sua sponte “prevent an unauthorized person from
practicing law in a case pending before it,” and opposing
parties have standing to challenge such an appearance. (Quoting
Tradewinds Hotel v. Cochran, 8 Haw. App. 256, 264, 799 P.2d 60,
65 (1990)). Noa and Armitage filed a memorandum in opposition
objecting to the motion without argument, as prime minister and
foreign affairs minister/defendant pro se, respectively. The
ICA denied the motion “without prejudice to the merit panel’s
consideration when reviewing the appeal on the merits.” A&B
renewed its arguments for dismissal in its answering brief.
Armitage and Noa filed a reply brief in the same capacities as
in the opening brief, but did not address the issue of their
representation of the Reinstated Hawaiian Nation.
In a summary disposition order, the ICA affirmed the
circuit court’s September 16, 2016 amended final judgment.
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As a preliminary matter, the ICA held that under
Hawai‘i Revised Statutes (HRS) §§ 605-2 (2016)9 and 605-14
(2016)10, Noa and Armitage could not represent the Reinstated
Hawaiian Nation. Therefore, the Reinstated Hawaiian Nation was
not a party to the appeal:
Under HRS § 605-2 (2016) and § 605-14 (2016), persons who
are not licensed to practice law in Hawai‘i “are not
permitted to act as ‘attorneys’ and represent other natural
persons in their causes.” Oahu Plumbing & Sheet Metal,
Ltd. v. Kona Constr., Inc., 60 Haw. 372, 377, 590 P.2d 570,
573 (1979) (emphasis in original). “By the same token,
non-attorney agents are not allowed to represent
corporations in litigation, for a wholly unintended
exception to the rules against unauthorized practice of law
would otherwise result.” Id. at 377, 590 P.2d at 574. The
same rules apply to unincorporated entities, such as
Reinstated Hawaiian Nation. See Free Church of Tonqa-Kona
v. Ekalesia Ho‘ole Pope O Kekaha, No. CAAP-XX-XXXXXXX, 2019
WL 2285359, at *2 (Haw. App. May 28, 2019) (SDO).
Therefore, neither Nelson Armitage nor Henry Noa was
entitled to assert an appeal on behalf of Reinstated
9 HRS § 605-2 provides:
Except as provided by the rules of court, no person shall
be allowed to practice in any court of the State unless
that person has been duly licensed so to do by the supreme
court; provided that nothing in this chapter shall prevent
any person, plaintiff, defendant, or accused, from
appearing in person before any court, and there prosecuting
or defending that person’s, plaintiff’s, defendant’s, or
accused’s own cause, without the aid of legal counsel;
provided further that in the district courts sections 605-
13 and 633-28 shall apply.
10 HRS § 605-14 provides in relevant part:
It shall be unlawful for any person, firm, association, or
corporation to engage in or attempt to engage in or to
offer to engage in the practice of law, or to do or attempt
to do or offer to do any act constituting the practice of
law, except and to the extent that the person, firm, or
association is licensed or authorized so to do by an
appropriate court, agency, or office or by a statute of the
State or of the United States.
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Hawaiian Nation. Accordingly, the notice of appeal is not
valid with respect to Reinstated Hawaiian Nation, and
Reinstated Hawaiian Nation is not a party to this appeal.
Alexander & Baldwin, LLC v. Armitage, 146 Hawai‘i 232, 459 P.3d
791, 2020 WL 1227517, at *1 (App. Mar. 12, 2020).
Moreover, the ICA noted that, although purportedly
filed on their behalf, the opening brief was not signed by Wayne
Armitage, Robert Armitage, or Torres-Pestana. Id. at *2.
Therefore, it reasoned that Armitage was the only appellant.
Id. As to the six substantive points of error on appeal, the
ICA rejected each of Armitage’s arguments and affirmed the
September 16, 2016 amended final judgment of the circuit court.
Id. at *2-*8.
C. Supreme Court Proceedings
Armitage filed an application for writ of certiorari.
Armitage asserts only two questions in his application: “Whether
the circuit court committed reversible error by permitting
Petitioner and Petitioner’s codefendants to represent the
[Reinstated] Hawaiian [Nation], and whether failure of the judge
to remedy this error denied Petitioner his due process rights to
a fair hearing?” He does not challenge the ICA’s ruling on the
six points of error presented in the opening brief.
Armitage argues that the ICA’s decision “implicitly
voids the judgment” of the circuit court: if it was correct that
Armitage and Noa’s representation of the Reinstated Hawaiian
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Nation rendered its appeal a nullity, then so too must the
judgment below be voided. “The judiciary may not apply one set
of rules in circuit court and another set of rules at the
appellate level[.]”
Armitage also asserts that his individual due process
rights are implicated by the ICA’s holding because he “rel[ied]
on the circuit court’s implicit ruling that the [Reinstated]
Hawaiian [Nation]’s appearance and defense was valid.” Armitage
asserts that all relevant actors, including three circuit court
judges, recognized him as a representative of the Reinstated
Hawaiian Nation. He claims that his defense “would have been
entirely different had he been sued alone, without the
[Reinstated] Hawaiian [Nation] as a codefendant.” Finally,
noting that his hearing was inextricable with the Reinstated
Hawaiian Nation’s, he argues that if this court vacates the
judgment against the Reinstated Hawaiian Nation, the court must
also vacate the judgment against him and all other named
codefendants.
In response, A&B argues the ICA properly held that
Armitage could not represent the Reinstated Hawaiian Nation. As
a result, A&B argues, the Reinstated Hawaiian Nation was
correctly not considered a party to the appeal before the ICA.
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A&B also asserts that Armitage was not denied due
process. A&B cites Sandy Beach Defense Fund v. City Council of
Honolulu, 70 Haw. 361, 378, 773 P.2d 250, 261 (1989) for the
proposition that “[t]he basic elements of procedural due process
of law require notice and an opportunity to be heard at a
meaningful time and in a meaningful manner before governmental
deprivation of a significant property interest.” A&B points out
that Armitage and his codefendants were given an opportunity to
cross-examine witnesses, present evidence and arguments,
question and call their own witnesses, and file closing briefs.
A&B notes that when it was Armitage’s turn to present evidence
on September 19, 2014, he requested a continuance but never
called any witness or presented any evidence.
III. STANDARDS OF REVIEW
A. Pro Se Litigants
“Pleadings prepared by pro se litigants should be
interpreted liberally.” Dupree v. Hiraga, 121 Hawai‘i 297, 314,
219 P.3d 1084, 1101 (2009). “The underpinnings of this tenet
rest on the promotion of equal access to justice — a pro se
litigant should not be prevented from proceeding on a pleading
or letter to an agency if a reasonable, liberal construction of
the document would permit him or her to do so.” Waltrip v. TS
Enters., Inc., 140 Hawai‘i 226, 239, 398 P.3d 815, 828 (2016).
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B. Constitutional Law
“We answer questions of constitutional law by
exercising our own independent constitutional judgment based on
the facts of the case. Thus, we review questions of
constitutional law under the right/wrong standard.” Onaka v.
Onaka, 112 Hawai‘i 374, 378, 146 P.3d 89, 93 (2006) (quoting
State v. Friedman, 93 Hawai‘i 63, 67, 996 P.2d 268, 272 (2000)).
IV. DISCUSSION
A. As Non-Attorneys, Noa and Armitage Were Not Authorized to
Represent the Reinstated Hawaiian Nation
As an unincorporated entity, the Reinstated Hawaiian
Nation may only appear in court through an attorney
representative. Noa and Armitage, as non-attorneys, should not
have been allowed to represent its interests before the circuit
court. The circuit court should have sua sponte exercised its
power to prevent the unauthorized practice of law by preventing
Noa and Armitage from representing the Reinstated Hawaiian
Nation.
Under HRS § 605-2, with exceptions not relevant here,
no person may practice in any court of this state unless
licensed to do so by the supreme court. Indeed, the
unauthorized practice of law is a misdemeanor. HRS §§ 605-14,
605-17 (2016); see also HRS § 605-15.2 (2016) (providing
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injunctive, declaratory, and criminal remedies for the
unauthorized practice of law).
The rule against non-attorney representation applies
to lay representation of corporations. “The prevailing rule is
that a corporation cannot appear and represent itself either in
proper person or by its officers, but can do so only by an
attorney admitted to practice law.” Oahu Plumbing, 60 Haw. at
374, 590 P.2d at 572; see also Rowland v. Cal. Men’s Colony,
Unit II Men’s Advisory Council, 506 U.S. 194, 201–02, (1993)
(“It has been the law for the better part of two centuries, for
example, that a corporation may appear in the federal courts
only through licensed counsel.”).
This rule arises out of the necessity of having a
single person represent a corporation’s interests. Oahu
Plumbing, 60 Haw. at 376, 590 P.2d at 573. Corporations are
“hydra-headed entit[ies]” whose shareholders are immune from
liability, thus requiring “a designated spokesman accountable to
the Court.” Id. at 377-78, 590 P.2d at 574 (citation omitted);
see also Downtown Disposal Servs., Inc. v. City of Chicago, 979
N.E.2d 50, 54 (Ill. 2012) (“It is not every case where the views
or interests of a principal and the corporation mesh. By
requiring an attorney to represent a corporation in legal
proceedings, this problem is mitigated.”).
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The same rationale applies with equal force to
unincorporated entities. See Rowland, 506 U.S. at 202 (“[T]he
rationale for that rule applies equally to all artificial
entities.”). As we held in Oahu Plumbing, non-attorney agents
may not represent corporations in litigation because “a wholly
unintended exception to the rules against unauthorized practice
of law would otherwise result.” 60 Haw. at 377, 590 P.2d at 574.
Likewise, a “wholly unintended exception” would arise if non-
attorneys could represent unincorporated associations, but not
corporations or natural persons, in court. In addition, the
weight of authority from other jurisdictions holds that non-
attorneys are barred from representing any organization in
court, not just corporations. See, e.g., Church of the New
Testament v. United States, 783 F.2d 771, 773 (9th Cir. 1986);
State ex rel. Stephan v. Williams, 793 P.2d 234, 241-42 (Kan.
1990); State v. Settle, 523 A.2d 124, 129 (N.H. 1987).11
11 In this case, the ICA relied on Free Church of Tonga-Kona, 2019
WL 2285359, at *2, which held that to the extent “an unincorporated entity
consisting of multiple members” would fit the definition of a “nonprofit
association” under HRS § 429-1 (2004), it may not appear in court through a
non-attorney agent. Armitage, 2020 WL 1227517, at *1. HRS § 429-1 defines a
nonprofit association as “an unincorporated organization, other than one
created by a trust, consisting of two or more members joined by mutual
consent for a common, nonprofit purpose.”
However, the bar on non-attorney representation of unincorporated
entities does not turn on their statutory classification. Whatever its
statutory status, an unincorporated entity with multiple constituents may not
be represented by a non-attorney agent in court. See Settle, 523 A.2d at 129
(holding that even though under New Hampshire law, an association may be
viewed as “merely a group of individuals voluntarily joined together to
(continued...)
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Here, it is undisputed that Noa and Armitage were
engaged in the practice of law as representatives of the
Reinstated Hawaiian Nation. Under Hawai‘i law, Noa and Armitage
were not authorized to represent its interests in court.
Because Noa and Armitage, as non-lawyers, were not
authorized to represent the Reinstated Hawaiian Nation in court,
the circuit court should have exercised its inherent power to
prevent their unauthorized practice of law. “Our courts have
inherent and statutory powers to deal with the unauthorized
practice of law. . . . Under those powers, our courts, sua
sponte, may prevent an unauthorized person from practicing law
in a case pending before [them].” Tradewinds Hotel, 8 Haw. App.
at 263-64, 799 P.2d at 65 (citations omitted). Courts have an
active role in enforcing HRS §§ 605-2 and 605-14. Thus, they
not only may but should act sua sponte to prevent non-attorneys
from practicing law before them.
In particular, when confronted with an attempt by a
layperson to represent an entity, the court should continue the
proceedings to allow the entity to obtain counsel; if the entity
fails to do so within a reasonable period, the court should
enter a default or take other remedial action. See Shasteen,
(...continued)
further a common purpose” or “a collection of individuals,” it may not be
represented by a non-attorney agent in court).
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Inc. v. Hilton Hawaiian Vill. Joint Venture, 79 Hawai‘i 103, 109,
899 P.2d 386, 392 (1995) (“[A] corporation should be allowed an
opportunity to secure counsel before permitting an entry of
default against the corporation or, as in this case, dismissing
the action[.]”).
This was substantially the course of action that the
district court took in Oahu Plumbing. In that case, default was
entered against a corporation, Kona Construction, Inc., after
which its non-attorney officer, Walters, appeared before the
court and moved to set aside the default.
The court below then informed Walters that it was initially
inclined to withhold action on the motion if an attorney
was obtained to represent Kona Construction. After
continued discourse, Walters informed the court that Kona
Construction did not intend to find an attorney to
represent it. The court thereafter ruled that since, in
its opinion, corporations could not be represented by their
non-attorney officers, and in view of the fact that Kona
Construction did not intend to obtain an attorney, the
motion could not be granted and that Kona Construction
would remain in default.
60 Haw. at 374, 590 P.2d at 572.
We affirmed, holding, “Without an attorney, Kona
Construction was precluded from further participation in the
proceedings, and the court below acted properly in allowing the
entry of default to stand.” Id. at 380, 590 P.2d at 576.
Likewise, here, the court should have provided the Reinstated
Hawaiian Nation with an opportunity to obtain an attorney. If
it failed to do so, an entry of default would have been
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appropriate. Cf. KSNG Architects, Inc. v. Beasley, 109 S.W.3d
894, 899 (Tex. App. 2003) (“The trial court abused its
discretion in striking [the defendant’s] answer without giving
it the opportunity to hire counsel and replead.”). In either
case, the court should not have let Noa and Armitage continue to
represent the Reinstated Hawaiian Nation.12
B. Although We Reject the Nullity Rule, Public Policy and the
Pervasiveness of the Representation Here Require Vacatur
Because we conclude that Armitage and Noa should not
have been allowed to represent the Reinstated Hawaiian Nation,
we must decide what effect, if any, their unauthorized
representation has on the judgment rendered against the
Reinstated Hawaiian Nation. This is a question of first
impression before this court. We hold that although the
participation of a non-attorney representative does not
12 We note that to the extent Armitage here seeks to vacate the
judgment against the Reinstated Hawaiian Nation, he is arguably attempting to
represent it on certiorari review. Although the application is unsigned, the
accompanying certificate of service is signed by Nelson Armitage as “Minister
of Foreign Affairs, Kingdom of Hawai‘i.” We nevertheless reach the merits of
the application in the interests of justice, as we did in Oahu Plumbing:
We recognize that the propriety of Walters’ appearance on
behalf of Kona Construction on this appeal, as well as in
all proceedings below, may be seriously questioned in view
of the very issue raised on this appeal. However, mindful
of the significance of this issue, we have allowed this
case to proceed and have examined the record to determine
the rights of both Kona Construction and Oahu Plumbing.
60 Haw. at 373 n.1, 590 P.2d at 571 n.1. (citations omitted).
So here, we reach the merits of the Reinstated Hawaiian Nation’s
application in order to determine the effect of the judgment against it.
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automatically render a resulting judgment null, the
pervasiveness of the representation here requires vacatur.
Jurisdictions generally fall into two groups regarding
the effect of non-attorney representation. One group – the so-
called “nullity rule” jurisdictions - holds that these actions
automatically result in a nullity.13 The other group assesses
the circumstances of the non-attorney’s actions to determine
whether they should be rendered null or if they can be
corrected.14
13 See Kelly v. Saint Francis Med. Ctr., 889 N.W.2d 613, 621 (Neb.
2017) (“We regard the unauthorized practice of law as a serious offense, and
we therefore favor the approach of those jurisdictions that have found that
any unauthorized practice is a nullity.”); Naylor Senior Citizens Hous., LP
v. Side Constr. Co., 423 S.W.3d 238, 246–47 (Mo. 2014) (en banc) (“[A]ctions
constituting the unauthorized practice of law must not be recognized or given
effect.”); Davenport v. Lee, 72 S.W.3d 85, 93–94 (Ark. 2002) (“In light of
our duty to ensure that parties are represented by people knowledgeable and
trained in the law, we cannot say that the unauthorized practice of law
simply results in an amendable defect.”); Jadair Inc. v. U.S. Fire Ins. Co.,
562 N.W.2d 401, 411 (Wis. 1997) (holding notice of appeal not signed by an
attorney was “fundamentally defective” and could not be saved by amendment);
Land Mgmt., Inc. v. Dep’t of Env’t Prot., 368 A.2d 602, 604 (Me. 1977)
(“Since the plaintiff was not represented by counsel licensed to practice
law, its complaint was a nullity and was properly dismissed by the [lower
court].”); Expressway Assocs. II v. Friendly Ice Cream Corp., 642 A.2d 62, 67
& n.10 (Conn. App. Ct. 1994) (holding that failure of an attorney to sign
appeal deprived the court of subject-matter jurisdiction and dismissing the
appeal).
14 See In re IFC Credit Corp., 663 F.3d 315, 321 (7th Cir. 2011)
(holding debtor could relate back to its bankruptcy filing to correct the
lack of an attorney signature); Retail Clerks Union Joint Pension Tr. v.
Freedom Food Ctr., Inc., 938 F.2d 136, 137 (9th Cir. 1991) (“The fact that a
non-attorney represented a party in a judicial proceeding does not render the
resulting judgment void per se.”); Bisher v. Lehigh Valley Health Network,
Inc., 265 A.3d 383, 408-10 (Pa. 2021) (holding that complaint filed by non-
attorney parent on behalf of son’s estate was not automatically a nullity);
Rental Prop. Mgmt. Servs. v. Hatcher, 97 N.E.3d 319, 329 (Mass. 2018)
(holding trial judge has discretion to either dismiss a complaint improperly
filed by non-attorney or allow amendment); Downtown Disposal, 979 N.E.2d at
57 (“We hold there is no automatic nullity rule. Instead, the circuit court
(continued...)
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Preliminarily, we reject the view of some
jurisdictions that the absence of an attorney, where required,
is jurisdictional. See, e.g., Expressway Assocs. II v. Friendly
Ice Cream Corp., 642 A.2d 62, 67 n.10 (Conn. App. Ct. 1994).
HRS § 603-21.5 (Supp. 2017) provides that the “circuit courts
shall have jurisdiction, except as otherwise expressly provided
by statute, of . . . [c]ivil actions and proceedings.”
(Emphasis added.) Nothing in HRS §§ 605-2 or 605-14 limits that
(...continued)
should consider the circumstances of the case and the facts before it in
determining whether dismissal is proper.”); H & H Dev., LLC v. Ramlow, 272
P.3d 657, 663 (Mont. 2012) (holding trial court should evaluate circumstances
to decide if plaintiff could relate back to original complaint improperly
filed without counsel); Save Our Creeks v. City of Brooklyn Park, 699 N.W.2d
307, 311 (Minn. 2005) (holding that “the lack of an attorney’s signature is a
defect that can be cured”); Moore Energy Res., Inc. v. Pub. Serv. Comm’n, 785
A.2d 300, 305 (D.C. 2001) (“[C]ompelling policy reasons exist for fashioning
a rule that permits a corporation to cure its petition for review if it was
not initially signed by counsel.”); Torrey v. Leesburg Reg’l Med. Ctr., 769
So. 2d 1040, 1046 (Fla. 2000) (“[A] trial court must allow litigants a
reasonable amount of time to amend their complaints with the appearance of
authorized counsel. A dismissal should only be granted if the party fails to
timely amend his or her pleading.”); Boydston v. Strole Dev. Co., 969 P.2d
653, 656 (Ariz. 1998) (en banc) (“A corporation cannot appear without a
lawyer, but when it does so its action is not automatically a nullity. A
reasonable opportunity should be given to cure the problem.” (citation
omitted)); A-OK Const. Co. v. Castle Constr. Co., 594 So. 2d 53, 54 (Ala.
1992) (declining to dismiss corporation’s appeal by layperson because
judgment was “due to be affirmed on the merits” so dismissal “could lead only
to . . . a pointless rebriefing of the case”); Starrett v. Shepard, 606 P.2d
1247, 1253–54 (Wyo. 1980) (where non-attorney “representation was very
limited,” default against a corporation was not required); Hamilton Livery
Leasing, LLC v. State, 58 N.Y.S.3d 624, 628 (N.Y. App. Div. 2017) (“[T]he
irregularity of claimant’s initial filing was one that the Court of Claims
could have disregarded, given counsel’s subsequent appearance on behalf of
claimant, by granting so much of claimant’s motion to amend the claim as
added counsel’s signature[.]”); First Wholesale Cleaners Inc. v. Donegal Mut.
Ins. Co., 792 A.2d 325, 334 (Md. Ct. Spec. App. 2002) (declining to dismiss
appeal filed by non-attorney where corporation subsequently obtained
counsel); Peachtree Plastics, Inc. v. Verhine, 528 S.E.2d 837, 837–38 (Ga.
Ct. App. 2000) (holding corporation, through attorney, could relate back to
answer filed by non-attorney president).
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jurisdiction or the jurisdiction of the courts of appeals.
Further, our courts have reached the merits of appeals by non-
attorneys as to whether they could represent entities in court.
See Oahu Plumbing, 60 Haw. at 373 n.1, 590 P.2d at 571 n.1;
Tradewinds Hotel, 8 Haw. App. at 259-60, 799 P.2d at 63-64(considering appeal of non-attorney trustee on the issue of
whether he could represent trust).15 It would not be possible
for our courts to hear those cases if the lack of an attorney
representative deprived us of jurisdiction. Thus, we have
implicitly rejected this view.
Moreover, we do not view the nullity rule as necessary
in every case to promote the policies behind the ban on the
unauthorized practice of law.
This holding requires us to first examine the policies
underlying the proscription against non-attorney representation.
We have reasoned that a corporation must be represented by
counsel because, as an artificial entity, it can only act
through a representative; in turn, that representative must be
an attorney “to protect the courts and to further the efficient
administration of justice.” Oahu Plumbing, 60 Haw. at 376, 590
15 We note that these cases involved non-attorneys appealing with
respect to their ability to represent entities or, as here, the result of
that representation; we do not suggest a broader right for laypersons to
represent entities on appeal.
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P.2d at 573. In addition to protecting the courts, we have
noted that the statutes criminalizing unauthorized practice
“were intended to protect the public ‘against incompetence or
improper activity.’” Fought & Co. v. Steel Eng’g & Erection,
Inc., 87 Hawai‘i 37, 45, 951 P.2d 487, 495 (1998) (quoting S.
Stand. Comm. Rep. No. 700, in 1955 Senate Journal, at 661; H.
Stand. Comm. Rep. No. 612, in 1955 House Journal, at 782).
Other jurisdictions have similarly held that the ban
on non-attorney representation serves
(1) to protect citizens from injury caused by the ignorance
and lack of skill on the part of those who are untrained
and inexperienced in the law, (2) to protect the courts in
their administration of justice from interference by those
who are unlicensed and are not officers of the court, and
(3) to prevent the unscrupulous from using the legal system
for their own purposes to the harm of the system and those
who may unknowingly rely upon them.
Kelly v. Saint Francis Med. Ctr., 889 N.W.2d 613, 619 (Neb.
2017) (quoting Waite v. Carpenter, 496 N.W.2d 1, 6 (Neb. Ct.
App. 1992)); see also Ex parte Ghafary, 738 So. 2d 778, 779
(Ala. 1998) (adopting the same rationale).
Thus, corporations and other entities must be
represented by an attorney in order to protect both the courts
and the public from the unskilled and the unscrupulous. Among
the members of the public sought to be protected by the rule are
litigants themselves, who may suffer prejudice from “the
mistakes of the ignorant and . . . injuries caused by the
unscrupulous.” Gomes v. Roney, 151 Cal. Rptr. 756, 757 (Cal.
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Ct. App. 1979). Courts and opposing parties may also be
impacted by “confusion aris[ing] because of unintelligible,
untimely or inappropriate documents drawn by the layman.”
Rogers v. Mun. Ct., 243 Cal. Rptr. 530, 532 (Cal. Ct. App.
1988).
For the following reasons, we hold that the nullity
approach is not necessary to serve these policy goals.
First, there are other remedies besides nullification
that deter the unauthorized practice of law. See Torrey v.
Leesburg Reg’l Med. Ctr., 769 So. 2d 1040, 1045 (Fla. 2000)
(noting in the context of out-of-state attorneys practicing in
Florida without a license that there are “better suited
mechanisms available to discourage the unlicensed practice of
law” such as injunctive relief and attorney discipline). For
example, the attorney general or any bar association may bring a
civil action, HRS § 605-15.1 (2016), and those guilty of
unauthorized practice of law may incur criminal penalties, HRS §
605-17. Courts also can use their “inherent and statutory
powers” to craft appropriate remedies, and opposing parties have
standing to request that the court enjoin unauthorized practice.
Tradewinds Hotel, 8 Haw. App. at 263-64, 799 P.2d at 65; see
also Rental Prop. Mgmt. Servs. v. Hatcher, 97 N.E.3d 319, 329
(Mass. 2018) (holding that although a “court has no discretion
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to tolerate” unauthorized practice, a “judge does have the
discretion . . . to determine the appropriate remedy”).
Second, the nullity approach is harsher than necessary
to achieve its ends. Rather than punishing the culpable party –
the purported representative – it may punish those who were
purported to be represented. See Bisher v. Lehigh Valley Health
Network, Inc., 265 A.3d 383, 409 (Pa. 2021) (noting that an
inadvertent violation by a corporate officer could prejudice
thousands of stockholders). “[I]t would be ironic to protect
the public from the unauthorized practice of law by adopting a
remedy that can end up doing more damage than the infraction
itself.” Id. at 408-09. Moreover, even under the remedial rule
we announce today, any action infected by non-attorney
representation might be voided on appeal. Thus, all parties
have an incentive to prevent unauthorized practice of law in
order to avoid duplicative litigation. In other words, the
nullity rule sweeps too broadly.
Lastly, the nullity rule cuts against our policy of
affording litigants the opportunity to be heard on the merits
whenever possible, which is especially pertinent in pro se
cases. See Erum v. Llego, 147 Hawai‘i 368, 380-81, 465 P.3d 815,
827-28 (2020). Other courts have cited similar policies as a
reason to reject the nullity approach. See Bisher, 265 A.3d at
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408 (“[Although t]he bright-line rule is attractive . . . our
preference for adjudicating cases on the merits countenances
against that temptation.”); Moore Energy Res., Inc. v. Pub.
Serv. Comm’n, 785 A.2d 300, 305 (D.C. 2001) (citing the
preference for resolution on the merits as one of several
reasons for rejecting the nullity rule).
For all these reasons, we reject the nullity approach.
Instead, we find persuasive the logic of the Illinois Supreme
Court in Downtown Disposal:
[B]ecause the consequences of applying the nullity rule to
a case can be harsh, it should be invoked only where it
fulfills the purposes of protecting both the public and the
integrity of the court system from the actions of the
unlicensed, and where no other alternative remedy is
possible.
979 N.E.2d at 57.
In sum, courts should address the effects of non-
attorney representation on a case-by-case basis with an eye
toward vindicating the policy aims of HRS §§ 605-2 and 605-14,
namely protecting the courts and the public, including the
litigants, from the conduct of non-attorneys. In conducting
this analysis, courts should consider among other relevant
circumstances:
whether the nonattorney’s conduct is done without knowledge
that the action was improper, whether the corporation acted
diligently in correcting the mistake by obtaining counsel,
whether the nonattorney’s participation is minimal, and
whether the participation results in prejudice to the
opposing party.
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Id. (adding that a court “may properly dismiss an action where
the nonlawyer’s participation on behalf of the corporation is
substantial, or the corporation does not take prompt action to
correct the defect”); see also Save Our Creeks v. City of
Brooklyn Park, 699 N.W.2d 307, 311 (Minn. 2005) (adopting these
factors); H & H Dev., LLC v. Ramlow, 272 P.3d 657, 662 (Mont.
2012) (concurring with Save Our Creeks).
Here, these factors require that the circuit court’s
judgment be vacated as to the Reinstated Hawaiian Nation.
First, we find it significant that Armitage and Noa
were apparently unaware that they were not authorized to
represent the Reinstated Hawaiian Nation. Where a violation is
knowing or intentional and the non-attorney party is attempting
to “game the system,” they should not be allowed to benefit from
their own wrongful conduct. Rental Prop. Mgmt., 97 N.E.3d at
329; cf. Scandia Down Corp. v. Euroquilt, Inc., 772 F.2d 1423,
1427 (7th Cir. 1985) (“A corporation may not grant itself a
continuance by manipulating things so that it has no counsel.”).
That is not the case here. The circuit court acquiesced to the
representation, and A&B did not challenge it until the resulting
judgment was appealed. Under these circumstances, it was
reasonable for Noa and Armitage to believe they were within
their rights to represent the Reinstated Hawaiian Nation.
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The second factor – whether the non-attorney party
acted diligently in obtaining counsel – does not apply to this
case. At no relevant point were Noa and Armitage made aware
that they were not authorized to represent the Reinstated
Hawaiian Nation and given an opportunity to seek counsel.
Third, the non-attorneys’ participation here was not
minimal, but rather continuous and pervasive. Over the course
of a years-long proceeding before multiple circuit court judges,
Noa and Armitage were allowed to act as an attorney would on
behalf of the Reinstated Hawaiian Nation by filing motions,
making arguments, cross-examining witnesses, and challenging
evidence.
The final factor weighs in favor of A&B. A&B would
indeed be prejudiced by having to relitigate this matter, a case
it has already litigated for the better part of a decade. While
the prejudice to A&B is substantial, it is outweighed by the
other three factors weighing in favor of vacatur.
In addition, the policies behind the prohibition
against non-attorney representation support vacatur here. Many
of the “harmful consequences of unlicensed law practice are
evident here,” particularly “confusion aris[ing] because of
unintelligible, untimely or inappropriate documents drawn by the
layman.” Rogers, 243 Cal. Rptr. at 532. Noa and Armitage’s
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lack of training and accountability to the court resulted in
delays, obscure or confusing filings, and the outlay of
considerable judicial resources.
The prohibition also seeks to protect the public; in
this case, that included the members of the Reinstated Hawaiian
Nation. These members were prejudiced when judgment was entered
against the organization of which they are a part without it
ever having benefited from the assistance of counsel. While we
do not judge their likelihood of success, Noa and Armitage
sought to make arguments here that would have benefited from the
guidance of a trained attorney. There is no doubt that several
of the dangers contemplated by HRS §§ 605-2 and 605-14 were
present in this case.
In sum, the fact that the representation was
apparently unwitting, the pervasiveness of the representation,
and the policy goals behind HRS §§ 605-2 and 605-14 require
vacatur here.
In light of this conclusion, the ICA erred by
dismissing Armitage and Noa’s appeal on behalf of the Reinstated
Hawaiian Nation without giving them an opportunity to cure the
defect by hiring counsel. The ICA had at least two options it
could properly have taken. First, it could have addressed the
effect of the non-attorney representation on the circuit court’s
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judgment below, as we do here and as the ICA itself did in
Tradewinds Hotel, 8 Haw. App. at 260, 799 P.2d at 64 (reaching
the merits of a non-attorney’s appeal on the issue of whether
the court below properly enjoined him from representing a
trust). Second, it could have ordered the Reinstated Hawaiian
Nation to refile an opening brief signed by counsel, subject to
dismissal only if an amended brief was not filed within a
reasonable period. See Shasteen, 79 Hawai‘i at 109, 899 P.2d at
392; Boydston v. Strole Dev. Co., 969 P.2d 653, 656 (Ariz. 1998)
(en banc) (holding that non-attorney who filed appeal on a
corporation’s behalf should have been given opportunity to cure
the defect). However, in light of our policy in favor of
hearing cases on the merits wherever possible and our liberal
construction of pro se filings, Erum, 147 Hawai‘i at 380-81, 465
P.3d at 827-28, the ICA should not have dismissed the appeal
without giving the Reinstated Hawaiian Nation a reasonable
opportunity to obtain counsel.
For this reason, we vacate the ICA’s judgment to the
extent that it affirmed the circuit court’s judgment against the
Reinstated Hawaiian Nation. We further vacate the circuit
court’s judgment against the Reinstated Hawaiian Nation.
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C. Armitage’s Due Process Rights Were Not Violated
Armitage also argues that his due process rights were
violated because, relying on “the circuit court’s implicit
ruling” that he could represent the Reinstated Hawaiian Nation,
he did not present any personal defenses, but rather focused his
arguments on the rights of the Reinstated Hawaiian Nation. He
argues that his “defense strategy would have been entirely
different had he been sued alone, without the [Reinstated]
Hawaiian [Nation] as a codefendant – i.e., [Armitage’s] entire
defense was undermined.” In addition, he argues that “this is
not a case where the [Reinstated] Hawaiian [Nation], its
evidence, and testimony, etc., can be neatly separated and
stricken from the record, as [Armitage’s] ‘hearing’ is
inextricable from that of the [Reinstated] Hawaiian [Nation].”
Therefore, if the circuit court’s judgment is vacated as to the
Reinstated Hawaiian Nation, Armitage argues it must also be
vacated as to him.
The Hawaiʻi Constitution provides, “No person shall be
deprived of life, liberty or property without due process of
law[.]” Haw. Const. art. I, § 5. The United States
Constitution provides similar protections. U.S. Const. amend.
XIV. “The basic elements of procedural due process of law
require notice and an opportunity to be heard at a meaningful
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time and in a meaningful manner[.]” Sandy Beach Def. Fund, 70
Haw. at 378, 773 P.2d at 261; see also Mathews v. Eldridge, 424
U.S. 319, 333 (1976) (“The fundamental requirement of due
process is the opportunity to be heard ‘at a meaningful time and
in a meaningful manner.’” (quoting Armstrong v. Manzo, 380 U.S.
545, 552 (1965))).
An examination of the record reveals that Armitage was
afforded a full opportunity to be heard at a meaningful time and
in a meaningful manner. Armitage appeared at the relevant
hearings and was given ample opportunities by the circuit court
to cross-examine witnesses, present evidence, question and call
witnesses, and present arguments orally and in writing. And, as
A&B points out, although Armitage was given an opportunity to
present evidence after A&B rested in the preliminary injunction
proceedings, he instead rested without putting forth any
evidence or calling any witnesses. Armitage thus had the
opportunity to participate fully in the court proceedings.
Although Armitage contends in his application that he
focused his defenses on the Reinstated Hawaiian Nation, the
record does not disclose any confusion during the proceedings
that Armitage was being sued. For example, at the January 15,
2014 hearing, the court addressed Armitage and asked him if he
wanted “to vacate the default that was entered against you.”
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(Emphasis added.) Armitage consistently identified himself as a
defendant pro se in filings. In at least one instance, he
signed a filing twice, once above the title, “REINSTATED
HAWAIIAN GOVERNMENT[,] By its Minister, Nelson Armitage,” and
then again above the title, “NELSON ARMITAGE, Individually,”
indicating an understanding of his dual role as representative
of the Reinstated Hawaiian Nation and a defendant in his own
right. In other words, he was on notice and, based on his
conduct, in fact knew that he faced liability for the relief
sought.
Additionally, while Armitage points out that he did
not raise any “personal defenses to the action,” he does not say
what defenses he might have raised that would have been
applicable to him, but not the Reinstated Hawaiian Nation. To
the contrary, the arguments that he and Noa raised on behalf of
the Reinstated Hawaiian Nation amounted to the assertion that
A&B did not own the contested land. This argument applies
equally to Armitage and all his codefendants. In other words,
although he generally claims his defense was geared toward the
Reinstated Hawaiian Nation, he does not say how it would have
been different if he had been aware that he could not represent
the Reinstated Hawaiian Nation in court. As we noted in Sandy
Beach Defense Fund, one of the considerations when weighing
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procedural due process arguments is “the probable value, if any,
of additional or alternative procedural safeguards.” 70 Haw. at
378, 773 P.2d at 261 (citing Mathews, 424 U.S. at 335). Here,
Armitage does not establish that the alternative procedural
safeguard of being barred from representing the Reinstated
Hawaiian Nation would have served to protect his right to due
process of law.
In sum, although Armitage claims his defense was
undermined, nothing prevented him from mounting his own
arguments, given that the record indicates he understood that he
was a defendant in his own right. Thus, Armitage was afforded
the “full rights of due process present in a court of law,
including presentation of witnesses and cross-examination.” Id.
at 378, 773 P.2d at 261. Armitage’s improper representation of
the Reinstated Hawaiian Nation did not render the judgment
against him in his individual capacity improper.
Finally, we reject the argument that because we vacate
the judgment as to the Reinstated Hawaiian Nation, we must
vacate the judgment against Armitage. While the Reinstated
Hawaiian Nation was not represented by licensed counsel, as
required, Armitage appeared in person and properly represented
himself pro se. See HRS § 605-2 (providing that “nothing in
this chapter shall prevent any person, plaintiff, defendant, or
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accused, from appearing in person before any court, and there
prosecuting or defending that person’s, plaintiff’s,
defendant’s, or accused’s own cause, without the aid of legal
counsel”). Armitage’s representation of himself did not
implicate the same policy concerns as his and Noa’s
representation of the Reinstated Hawaiian Nation. In short,
while Armitage may have shared defenses and evidence with the
Reinstated Hawaiian Nation, the error that infected the
organization’s representation did not infect Armitage’s hearing,
and we see no reason to vacate the judgment against him
individually. Thus, while we vacate the judgment below as to
the Reinstated Hawaiian Nation, we affirm the judgment as to all
other defendants.
V. CONCLUSION
For the foregoing reasons, we vacate the ICA’s April
14, 2020 judgment on appeal to the extent it affirmed the
circuit court’s September 16, 2016 amended final judgment as to
the Reinstated Hawaiian Nation, and vacate the circuit court’s
amended final judgment as to the Reinstated Hawaiian Nation.
However, we affirm the circuit court’s judgment as to Armitage
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and all other defendants. We remand this matter to the circuit
court for further proceedings consistent with this opinion.
Nelson K. Armitage, Sr. /s/ Mark E. Recktenwald
petitioner pro se
/s/ Paula A. Nakayama
Deborah K. Wright,
Keith D. Kirschbraun, /s/ Sabrina S. McKenna
and Douglas R. Wright
for respondent /s/ Michael D. Wilson
/s/ Todd W. Eddins
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