Alexander & Baldwin, LLC v. Armitage

• Decision Date: 05 April 2022
• Docket Number: SCWC-16-0000667
• Parties: ALEXANDER & BALDWIN, LLC, a Hawai‘i limited liability company, Respondent/Plaintiff-Appellee, v. 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.
• Court: Hawaii Supreme Court

151 Hawai‘i 37

508 P.3d 832

ALEXANDER & BALDWIN, LLC, a Hawai‘i limited liability company, Respondent/Plaintiff-Appellee,

v. Nelson ARMITAGE, Sr., Petitioner/Defendant-Appellant,andWayne 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,andRobert 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.

SCWC-16-0000667

Supreme Court of Hawai‘i.

APRIL 5, 2022

Nelson K. Armitage, Sr. petitioner pro se

Deborah K. Wright, Keith D. Kirschbraun, and Douglas R. Wright, Wailuku, for respondent

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 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.

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 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, "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.

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.

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.

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

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