Cordery v. Ige
| Decision Date | 22 February 2023 |
| Docket Number | SCEC-22-0000734 |
| Parties | GARY ARTHUR CORDERY, Plaintiff, v. DAVID YUTAKA IGE; JOSHUA BOOTH GREEN; SYLVIA JUNG LUKE; and MARK E. RECKTENWALD, individually and in their official capacities, Defendants. |
| Court | Hawaii Supreme Court |
Upon consideration of Plaintiff Gary Arthur Cordery's "Request for Declaratory Judgement" filed on December 15, 2022 (complaint), the motion to dismiss filed by Defendants (Dkt. 15), and the record, the court grants the Defendants' motion to dismiss and the complaint is dismissed as to all claims and parties.
On December 15, 2022, Cordery, pro se, submitted by electronic filing a document entitled "request for declaratory judgement without relief pursuant to HRCP Rule 57 . . ." (complaint) which was docketed as an "election contest" in the Hawai'i Supreme Court.[1] Dkt. 1; see also Dkt. 2 (). The complaint's caption and allegations identify the plaintiffs as "Gary Arthur Cordery pro se, along with more than Thirty Voters pro se". Dkt. 1:1. The complaint asserts this court has jurisdiction under Hawai'i Revised Statutes (HRS) § 11-172 (Supp. 2021), which is the election contest statute, and HRS § 602-5 (2016). Dkt. 1:2.
The complaint's allegations take issue with the timing of the inaugurations,[2] and do not challenge any election results. See Dkt. 1. The prayer for relief requests a declaratory judgment related to the timing of the inaugurations. See Dkt. 1:14-18.
The complaint was only signed by Cordery and included Cordery's address and phone number. Dkt. 1:1, 16. The complaint does not include the signature, address or phone number for any of the other thirty plaintiffs. See Dkt. 1; see also HRCP Rule 11(a) ().
On December 16, 2022 - the day after the complaint was filed - Cordery submitted an electronic filing of a document titled "Exhibit 3 Request for Declaratory Judgement" that appears to identify the purported signatures of thirty voters. Dkt. 7; see Dkt. 8 ().
On December 16, 2022, Cordery filed a motion to correct the record to identify a defendant (Motion #1). Dkt. 9. Motion #1 is only signed by Cordery. Dkt. 9:2. There is no signature of the other thirty plaintiffs. Id.
On December 22, 2022, Defendants filed a motion to dismiss the complaint. Dkt. 15. Defendants' arguments for dismissal are addressed below.
On December 26, 2022, Cordery filed a memorandum in opposition to Defendants' motion to dismiss. Dkt. 17. The memorandum in opposition is only signed by Cordery. Dkt. 17:8. There is no signature of any of the other thirty plaintiffs. Id. The arguments asserted by Cordery in opposition to the Defendants' motion to dismiss are addressed below. Dkt. 17.
On January 6, 2023, Cordery filed a motion for interrogatories. Dkt. 19. The document states, "I, Gary Arthur Cordery pro se, lead Petitioner, hereby bring this Motion for Interrogatories" (Motion #2). Dkt. 19:1. Motion #2 is only signed by Cordery. Id.
On January 12, 2023, Defendants filed a memorandum in opposition to Plaintiffs' Motion #2. Dkt. 21.
On January 16, 2023, Cordery filed a motion for additional interrogatories (Motion #3). Dkt. 23. Motion #3 is only signed by Cordery. Dkt. 23:5.
Defendants move to dismiss the complaint pursuant to HRCP Rule 12(b)(1) for lack of jurisdiction. Dkt. 15:6. "Our review of a motion to dismiss for lack of subject matter jurisdiction is based on the contents of the complaint, the allegations of which we accept as true and construe in the light most favorable" to the plaintiff. Yamane v. Pohlson, 111 Hawai'i 74, 81, 137 P.3d 980, 987 (2006) (cleaned up). Dismissal of the complaint is appropriate if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Bank of Am., N.A. v. Reyes- Toledo, 143 Hawai'i 249, 258, 428 P.3d 761, 770 (2018) (citation omitted); see Yamane, 111 Hawai'i at 81, 428 P.3d at 987 (same).
While Defendants' motion to dismiss did not raise any issue with Cordery, who is not an attorney, appearing to represent other natural persons in this case, the Court will sua sponte address the issue.
Under HRS § 605-2 (2016) and HRS § 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 a lawsuit. Oahu Plumbing and Sheet Metal, Ltd. v. Kona Construction, Inc., 60 Haw. 372, 377, 590 P.2d 570, 573 (1979) (); see also HRS § 605-2 (providing, in pertinent part, that "no person shall be allowed to practice in any court of the State unless that person has been duly licensed . . . by the supreme court[.]").
This court's decision in Alexander & Baldwin, LLC v. Armitage, 151 Hawai'i 37, 48-54, 508 P.3d 832, 843-849 (2022), is instructive. In Armitage the circuit court had allowed non-attorneys to represent an unincorporated association known as the "Reinstated Hawaiian Nation" in court to defend on an ejectment claim. Id., 151 Hawai'i at 42, 48, 508 P.3d at 837, 843. The circuit court granted summary judgment in favor of the plaintiff Alexander & Baldwin, LLC and against the defendant Reinstated Hawaiian Nation. Id. at 45, 508 P.3d at 840. On appeal, this court held:
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. . . .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.
Armitage, 151 Hawai'i at 49, 508 P.3d at 844 (first citation omitted) (emphasis added).
In so holding this court rejected a blanket "nullity rule" whereby actions of a non-attorney would "automatically result in a nullity." Id. at 50, 508 P.3d at 845; see id., at 51, 508 P.3d at 846 (). Instead, the court explained:
[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.
Armitage, 151 Hawai'i at 52, 508 P.3d at 847 (citation omitted). This court then went on to establish that "courts should address the effects of non-attorney representation on a case-by-case basis" and that the remedy imposed by the court should vindicate 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." Armitage, 151 Hawai'i at 52-53, 508 P.3d at 847-48. The court held that in conducting this analysis the courts should consider the following factors:
See Armitage, 151 Hawai'i at 52-53, 508 P.3d at 847-48. The court in Armitage then went on to apply these factors and vacated the summary judgment that had been entered by the circuit court. Id. at 51-54, 508 P.3d at 846-49.
Turning to the case before the court, the complaint asserts that the plaintiffs include "more than thirty voters pro se" (Dkt. 1:1) and that the signatures of these voters are attached at Exhibit 3. Dkt. 1:16. Yet there is no Exhibit 3 attached to the complaint, and the complaint itself does not include the names, signature, and phone numbers for any plaintiffs except for Cordery. See Dkt. 1. Even the caption of the complaint is silent as to the names of these other thirty voters. Id.
The day after the complaint was filed, on December 16, 2022, Cordery submitted an electronic filing of the signatures of the thirty voters on a document that is marked "Exhibit 3". See Dkt. 7; see also Dkt. 8 ().
The issue before the court, therefore, is whether the Exhibit 3 document filed by non-attorney Cordery the day after the complaint was filed joins these other natural persons to this action.
Applying the Armitage factors, we hold that the Exhibit 3 filing (Dkt. 7) does not have the legal effect of joining other natural persons to this action and, therefore, the only plaintiff to this action is Cordery.
As to the first factor - whether Cordery's conduct was done without knowledge that the action was improper - this factor is neutral as the record is silent as to whether Cordery knows he is not authorized to represent other natural persons in this action. See Armitage, 151 Hawai'i at 52-53, 508 P.3d at 847-48.
As to the second factor - whether these thirty voters acted diligently in correcting the...
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