Ala Moana Boat Owners' Ass'n v. State

• Decision Date: 07 November 1967
• Docket Number: No. 4559,4559
• Citation: 434 P.2d 516,50 Haw. 156
• Parties: , 50 Haw. 181 ALA MOANA BOAT OWNERS' ASSOCIATION, an Hawaiian, Unincorporated, Non-Profit Corporation v. STATE of Hawaii, and Fujio Matsuda, Director, Department of Transportation, State of Hawaii.
• Court: Hawaii Supreme Court

Page 516

434 P.2d 516

50 Haw. 156, 50 Haw. 181

ALA MOANA BOAT OWNERS' ASSOCIATION, an Hawaiian, Unincorporated, Non-Profit Corporation v. STATE of Hawaii, and Fujio Matsuda, Director, Department of

Transportation, State of Hawaii.

No. 4559.

Supreme Court of Hawai'i.

Nov. 7, 1967.

On Rehearing Nov. 17, 1967.

As Amended on Denial of Rehearing Dec. 8, 1967.

Syllabus by the Court

1. This court will dismiss an appeal where the brief does not comply with the requirements of rule 3(b)(5) of this court, by failing to present a concise argument of the case, and a clear statement of the points of law and facts to be discussed together with the authorities relied upon in support of each point.

2. The appendix to a brief shall not be used for purpose of argument.

3. Section 6C-3, R.L.H.1955, 1965 Supp., contemplates and authorizes changes in a rule between the original proposal as presented at the public hearing and as finally adopted. To require another hearing whenever there is any revision of the text of an original proposal after full hearing, is too formidable a burden on the rule-making process. However, to permit the original proposal to be completely ignored and adopt another proposal which was not advocated or discussed at the public hearing may destroy the statutory requirement for a public hearing.

4. Substantial changes in proposed rule after a public hearing may necessitate an additional hearing where the changes have not been previously advocated or discussed.

Ralph E. Corey, Clark, Corey, Robinson, Ryan & Ryan, Honolulu, for plaintiff-appellant.

Andrew S. Ono, Deputy Atty. Gen. (Bert T. Kobayashi, Atty. Gen., of the State of Hawaii, Honolulu, on the brief), for defendants-appellees.

Before RICHARDSON, C. J., and MIZUHA, MARUMOTO, ABE and LEVINSON, JJ.

MIZUHA, Justice.

Appellant filed an action against the appellee, the State of Hawaii, and its Director of Transportation, for a declaratory judgment on the validity of proposed Small Boat Harbors Regulations adopted on September 4, 1964, and which became effective on October 2, 1964.

On May, 26, 27, 28, and June 2, 1964, appellee held public hearings concerning proposed Small Boat Harbors Regulations. On August 17, 1964, appellant received from appellee a hand corrected draft of further amended proposed Small Boat Harbors Regulations, and on September 4, 1964, appellee adopted revised proposed regulations without calling further public hearings.

Plaintiff appeals from the judgment holding that the regulations are valid.

Appellant's opening brief fails to comply with the provision of Rule 3(b)(5) which requires that an opening brief contain,

'A concise argument of the case (preceded by a summary), exhibiting a clear statement of the points of law and facts to be discussed, with a reference to the pages of the record and the authorities relied upon in support of each point. When a treaty, statute, ordinance, regulation or rule is cited, so much thereof as may be deemed necessary for the decision of the case shall be set out at length or adequately summarized. If the matter so to be quoted or summarized, or if matter quoted from opinions, is long, it may be set out in an appendix. The appendix may also include such parts of the record or a summary thereof material to the questions presented as the appellant desires to have considered.'

The appellant alleges that the lower court erred in finding that revisions made to its proposed draft of its rules and regulations were not substantial. So far as argument is concerned, appellant merely says, 'refer to Appendix 'A'.' Appendix 'A' sets out in a comparative fashion provisions of the proposed draft and concomitant provisions of the adopted version with portions of the latter underscored, and purportedly indicating changes that have been made. There is no further argument or reason set out in the opening brief indicating more particularly why such changes should be considered substantial.

Appellant has used the appendix of its opening brief for purpose of argument. Rule 3(b)(5) indicates the specific use to which appendices to briefs are permitted, and precludes their use, as here, purely for purposes of argument.

Rule 3(b)(5) requires more than the showing of underscored exhibits. It requires specific arguments which demonstrate to this court, why a particular viewpoint should be adopted. Anything less can only be an imposition upon the court. Throughout its entire argument, the appellant has cast the burden on this court to ascertain the grounds of its objection to the trial court's findings of facts and counclusions of law. 'Counsel have no right to cast the burden on the court of searching through a voluminous record to find the ground of his objection and where the errors complained of are not squarely presented by the bill of exceptions, as in this exception, we shall follow the practice of this court and refuse to consider them.' Mist v. Kapiolani Estate, 13 Haw. 523, 526.

The requirement in Rule 3(b)(5) that a brief must contain, 'the authorities relied upon in support of each point,' is, as with all other requirements of Rule 3(b), prefaced by the words, 'shall contain.'

Close scrutiny of the appellant's opening brief reveals only generalities and assertions amounting to mere conclusions of law. Where arguments in a brief are unsupported by citations of authorities, this court will not ordinarily search out authorities, and will assume that counsel, after diligent search, had been unable to find any supporting authority. Malstrom v. Kalland, 62 Wash.2d 732, 384 P.2d 613(1963); DeHeer v. Seattle Post-Intelligencer, 60 Wash.2d 122, 372 P.2d 193 (1962); Lindsay v. Keimig,184 Kan. 89, 334 P.2d 326(1959); see also 5 Am.Jur.2d, Appeal and Error, Sec. 700.

Appellant has the burden of sustaining his allegations of error against the presumption of correctness and regularity that attend the decision of the lower court. '* * * the burden of showing error is on the plaintiffs in error. We necessarily approach a case with the assumption that no error has been committed upon the trial and until this assumption has been overcome by a positive showing the prevailing party is entitled to an affirmance.' Territory v. Kobayashi, 25 Haw. 762, 766; Kaehu v. Namealoha, 20 Haw. 350; Kalamakee v. Wharton, 19 Haw. 472; Pioneer Mill Co. v. Hart, 18 Haw. 674; Keliiilihune v. Vierra, 13 Haw. 28; see also 5 Am.Jur.2d, Appeal and Error, Sec. 704.

Appellant has not answered appellee's contentions as to the deficiencies of its opening brief, and has failed to file a reply brief.

We are of the opinion that appellant's failure to observe the requirements of the Rules of this court in its opening brief merits dismissal of the appeal. See State v. Pokini, 45 Haw. 295, 367 P.2d 499, 89 A.L.R.2d 1421 (1961); Aiau v. Aiau, 39 Haw. 122 (1951); and Territory v. Meyer, 37 Haw. 102 (1945), affirmed 9 Cir. 164 F.2d 845. As stated in Territory v. Meyer, supar:

'Furthermore...