MEYER v. TERRITORY OF HAWAII, 164 F.2d 845

GARRECHT, Circuit Judge. In each of these cases, the appellant was convicted of larceny in the first degree, in the Circuit Court of the Third Judicial Circuit of Hawaii. Writs of error were issued and dismissed by the Supreme Court of the Territory. From the judgments dismissing the writs the present appeals have been taken. The grounds for the Supreme Court’s action are fully set forth in its opinion, 37 Haw. 102, from which we quote in extenso: “Under the first writ there are nineteen assignments of error and under the second there are twenty-eight, two of the second being expressly abandoned in the briefs.

There are thus a total of forty-five assignments submitted for consideration. Nevertheless appellant’s briefs, purportedly a presentation for review, contain no itemized statement whatsoever of the errors counted upon for reversal of the judgments below, although without amplification the briefs tersely state that appellant relies upon ‘each and every one’ of the forty-five assignments of error which cover seventy-one typewritten pages and are incorporated verbatim therein.

From this state of the record there arises the question whether the appellant’s briefs reasonably and substantially comply with the rule of this court governing the preparation of briefs so as to merit appellate consideration of the assignments of error. The rule provides inter alia that an appellant’s brief ‘shall contain * * * a specification of the errors which are relied upon.’ (Rules Sup. Ct., 36 Haw. 753, rule 3, par. 1 [d].) “As stated generally in First Trust Co. v.

Cabrinha, 24 Haw. 655 at 657, ‘The rules of the supreme court are provided for the convenience, guidance and protection of all those having business before it and any attempt to ignore or evade the rules should be summarily checked.’ In line therewith, this court repeatedly has emphasized the importance of reasonable and substantial compliance with the above requirement pertaining to an appellant’s brief and sufficiently warned appellants in1 general that failure so to observe it would warrant dismissal. .[Cases cited] The salutary effect of such observance is apparent in that the rule requires an appellant, regardless of the mode of statutory appeal, to list concisely and state explicitly those errors upon which he believes the efficacy of the appeal itself depends so as to enable both opposing counsel and the appellate court to appreciate readily whatever cogency his appeal as such may have without resorting to a digest of the record proper.

It further directs their attention to the vital questions to be considered and the controlling points to be discussed on appeal, thus affording opposing counsel a better opportunity to meet and answer them intelligently and thereby placing the appellate court in proper position to determine the appeal in expedition of its calendar.

The requirement directly synchronizes with the other requirements of the rule that an appellant’s brief shall also contain ‘a concise * * * statement of the case presenting succinctly * * * the questions involved * * *’ and ‘a brief of the argument exhibiting a clear statement of the points of law * * * to be discussed and the authorities relied upon in support of each point.’ (Rules Sup.

Ct., supra, rule 3, par. 1 [c] and [e].) The rule thus serves to consolidate necessary elements of logical approach to and consideration of the subjects of review so that it affirmatively appears from the brief itself that the specified errors relied upon were properly preserved and correlate with the questions involved and the law discussed. (For further comment upon the purpose and function of such a rule see City of Lincoln v. Sun Vapor Street-Light Co., 8 Cir., 59 F. 756, at page 758.) “In this case the rule is flagrantly violated both in letter and spirit.

The appellant’s briefs do not contain any specification of the errors relied upon nor, although presenting a sweeping critique of alleged happenings below, do they purport to discriminate by way of reliance between the crucial and the unimportant. Neither are any portions thereof, either jointly or separately, susceptible to being construed as constituting reasonable and substantial compliance with the requirement of paragraph 1 (d), supra.

It is not necessary to pass upon the question whether any of the assignments of error are sufficient as a matter of law in order to say that neither verbatim repetition in the briefs nor the statements therein of the questions involved and briefs of the argument serve or combine to serve the function of a specification of the errors relied upon or possess the requisite quality thereof in respect to brevity and clarity. The assignments advance manifold and multifarious questions which, together with those stated as being involved, are not properly briefed in conformity to the requirement of paragraph 1 (

e) supra. In addition, most of the assignments are unduly lengthy and confusing, some are vague, while others embrace divergent points of law. As a result any coherency of presentation for review is destroyed, rendering the questions stated uncertain in application and dissipating whatever force the argument might otherwise have had.

Such being the state of the briefs, the requirement of paragraph 1 (d), supra, cannot be evaded by mere statements that the appellant relies upon each and every one of his numerous assignments, nor can he escape thereby the consequences of the fact that his briefs contain no specification of the errors relied upon.

Furthermore, the appellant, not having properly briefed the motley array of questions stated and advanced, cannot with reason expect the appellate court to make a painstaking survey of them in order to cull unimportant questions and determine the crucial ones, nor has the right to cast upon it his burden of studying the record and authorities to essay the essential to the maintenance of the appeal and its efficient prosecution. “In short, the violation and evasion by the appellant’s briefs of the mandatory requirement relative to a specification of the errors relied upon give rise to the very evils it is designed to prevent.

Consequently if that mandate is to retain any significance, it must be enforced in this case.” The appellant contends that the dismissal of the writs of error by the court below deprived him of his constitutional rights to a fair and impartial trial and to the equal protection of the laws.

Properly to assess the appellant’s position, we must consider the extent to which the jurisdiction of Federal and Territorial courts is defined by the Constitution'; the organization, status, and rule-making powers of the Supreme Court of Hawaii; and, finally, the authority, if any, of a Federal appellate tribunal to disturb a Territorial court’s

interpretation and application of local law in general, and of its own rules in particular. The only Federal tribunal specifically referred to in the Constitution is the Supreme Court of the United States. The opening sentence of

Article III,

Section 1, reads as follows: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” A fortiori, the Federal appellate power is even more sketchily outlined in the Constitution.

Article III,

Section 2, Clause 2 provides: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.

In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” At the threshold of this discussion, therefore, it should be borne in mind that, save for the exceptions noted in the foregoing excerpt, the appellate jurisdiction of the Supreme Court itself is defined not by the Constitution but by act of Congress. As far as relates to inferior Federal tribunals —including this court — not only their appellate jurisdiction but their very existence depends upon legislative fiat.

The Supreme Court has recognized as “well settled” the rule “that an appellate review is not essential to due process of law, but is a matter of grace.” Luckenbach S. S. Co. v. United States, 272 U.S. 533, 536, 47 S.Ct. 186, 187, 71 L.Ed. 394.

The same tribunal, however, has held that “while the 14th Amendment does not require that a State shall provide for an appellate review in1 criminal cases * * * it is perfectly obvious that where an appeal is provided for, and the prisoner has had the benefit of it, the proceedings in the appellate tribunal are. to be regarded as a part of the process of law under which he is held in custody by the state, and to be considered in determining any question of alleged deprivation of his life or liberty contrary to the 14th Amendment.” Frank v. Mangum, 237 U.S. 309, 327, 35 S.Ct. 582, 587, 59 L.Ed. 969.

See also Cochran v. Kansas, 316 U.S. 255, 257, 258, 62 S.Ct. 1068, 86 L.Ed. 1453. Next to be considered Í9 the place occupied by the Supreme Court of Hawaii in the appellate hierarchy. Upon this question, the Supreme Court of the United States has thrown considerable light. In Waialua Agricultural Co. v.

Christian, 305 U.S. 91, 107, 108, 59 S.Ct. 21, 29, 83 L.Ed. 60, the Court, after reviewing certain statutes providing for appeals from the Territorial Supreme Court, continued: “In each of these successive enactments the Congress has recognized, to some degree, the autonomous position of the Supreme Court of the Territory. “This recognition is natural. The territorial court has general appellate jurisdiction of cases involving the mores and statutes of an archipelago, the first known compilation of whose, laws appeared in 1842.

Isolated until the day of electrical communication and aerial transportation from continuous contact with other peoples, and inhabited by diverse stocks of Oceánica, Asia, Europe and America, it developed, as an independent kingdom, a jurisprudence adapted to its needs. The constitution of Kamehameha III established a Supreme Court of the Kingdom in 1840 and defined its jurisdiction. The common1 law and the civil law were sources of information but not of authority. Until 1892, lacunae were filled by the judges.

The laws developed were largely left in force by the Organic Act.” We turn now to the rule-making power of courts in general, and of the Supreme Court of Hawaii in particular.

The district courts of the United States “may, from time to time, and in any manner not inconsistent with any law of the United States, or with any rule prescribed by the Supreme Court, * * *, make rules and orders directing the returning of writs and processes, the filing of pleadings, the taking of rules, the entering and making up of judgments by default, and other matters in vacation, and otherwise regulate their own practice as may be necessary or convenient for the ■advancement of justice and the prevention of delays in proceedings.” 28 U.S.C.A. § 731. [Emphasis supplied] Cf.

Rule 83 of the Federal Rules of Civil Procedure. See also Heckers v. Fowler, 2 Wall. 123, 128, 69 U.S. 123, 128, 17 L.Ed. 759, and Galveston Dry Dock & Const. Co. v. Standard Dredg. Co., 2 Cir., 40 F.2d 442, 444. The Supreme Court of Hawaii shares in this basic power of a tribunal to prescribe rules for the conduct of its own business.

Section 9613 of the Revised Laws of Hawaii 1945 reads as follows: “Rules. The supreme court may, from time to time, make rules consistent with existing laws for regulating the practice and conducting the business of the court, and thereafter revise such rules at its discretion; but in no case shall have power to impose costs not expressly authorized by law. * * * ” The rationale of this rule-making power of the courts is thus expounded in Washington-Southern Navigation Company v.

Baltimore & Philadelphia Steamboat Company, 263 U.S. 629, 635, 44 S.Ct. 220, 222, 68 L.Ed. 480: “The function of rules is to regulate the practice of the court and to facilitate the transaction of its business. This function embraces, among other things, the regulation of the forms, operation and effect of process; and the prescribing of forms, modes and times for proceedings. Most rules are merely a formation of the previous practice of the courts.

Occasionally, a rule is employed to express, in convenient form, as applicable to certain classes of cases, a principle of substantive law which has been established by statute or decisions.” Again, in Missouri, K. & T. Ry. Co. v. Kidd, 8 Cir., 146 F. 499, 500, it was said: “The fact that courts generally observe the convenience and desires of counsel as expressed in their stipulations gives rise sometimes to the impression that conformity with the rules of procedure is solely a matter for the determination of the parties litigant. This may be so in' some cases but certainly not in all.

There is a well-defined line of distinction between those rules that are for the benefit of the court and to aid it in the discharge of its duties and those that are for the benefit of parties litigant. [Many cases cited.]” Within their limited ambit, rules of court have the force of law. In Hicks v.

Bekins Moving & Storage Co., 9 Cir., 115 F.2d 406, 408, referring to 28 U.S.C.A. § 731, supra, we said: “Authority exercised within the scope of the statute is unquestionably valid; rules so promulgated have the force of law and are as binding upon appellate courts as a statute.” See also the Galveston Dry Dock case, supra, 2 Cir., 40 F.2d 442, 444; Paakuku (w.) v. Komoikehuehu, 3 Haw. 642, 644; Estate of Bishop, 5 Haw. 288, 290; 158 A.L.R. 709n.

It is not unreasonable for an appellate court to dismiss an appeal in a case where the appellant has failed to comply with the rules relative to specifications of error- — especially when the court has given previous warnings that the rule will be enforced. Sovereign Camp of the Woodmen of the World v. Jackson, 8 Cir., 97 F. 382, 385; Moline Trust & Savings Bank v. Wylie, 8 Cir., 149 F. 734. Such previous warnings have been repeatedly given by the Supreme Court of Hawaii. In Territory v. Taok, 33 Haw. 560, 564, the court said: “The appellant absolutely failed to comply with the provisions of rule 3 (

b) of this court that the brief contain ‘a specification of the exceptions or assigned errors which are relied upon.’ Failure to observe this rule may merit dismissal.” See also Furtado v. Rezents, 33 Haw. 569; Watumull v. Tax Commissioner, 34 Haw. 84, 85-86. Applying the foregoing principles to the facts of the present case, we find that, in the face of the warnings just referred to, the appellant’s brief did not conform to the rules of the Territorial Supreme Court.

Twice in his reply brief before this court, he admits that his brief below was defective: “Admittedly, in the case at bar, appellant’s claim to the right of review by this Court depends solely on whether the action of the Supreme Court of the Territory of Hawaii, in dismissing appellant’s writ of error for technical defects in his opening brief filed in that Court (particularly in view of that Court’s having overlooked similar defects in briefs of other appellants), involved the Constitution of the United States.” “For more than eight years prior to its action in this case, the Supreme Court of Hawaii had followed a course of considering on their merits questions sought to be reviewed notwithstanding the briefs of appellants, like the brief in the Hawaii Supreme Court in this matter, did not conform to the rules of that Court.” [Emphasis supplied] As far as the Territorial court’s eight-year toleration of infractions of its rules is concerned, such forbearance does not prevent that court from finally losing patience with defective brief-writing, particularly after giving repeated warnings to future violators.

In this posture of affairs, what is the responsibility of this court? To what extent can we reach down into a Territorial court and review its

interpretation and aplication of its own rules? These questions go to the very roots of this court’s jurisdiction to review judgments of the Supreme Court of Hawaii, as well as to the manner in which that jurisdiction should be exercised. The statutory grant of power is found in 28 U.S.C.A. § 225(a), which reads in part as follows: “(

a) Review of final decisions. The circuit courts of appeal [sic] shall have appellate jurisdiction to review by appeal final decisions— ****** “Fourth. In the Supreme Courts of the Territory of Hawaii and of Puerto Rico, in all cases, civil or criminal, wherein- the Constitution or a statute or treaty of the United States or any authority exercised thereunder is involved; * * The appellant strives to spell out a deprivation of his constitutional rights because the Territorial court “dismissed the writ on a mere technicality.” We do not agree.

The appellant does not argue, nor can he argue, that the rule itself is unconstitutional. As we have seen, he admits that he did not conform to a valid rule of the tribunal to which he was appealing. In our view, that ends the case. When the legislature grants the grace of an appeal, the appellate court has the right to prescribe and to enforce the rules according to which that appeal shall be prosecuted.

We have been cited to no authority which holds that, in a case where the appellant is represented by counsel, a court breaches constitutional law by insisting that the statutory right of appeal be exercised according to the lawful rules of that court. We have already pointed out that rules of court which are not violative of any statute, have the force of law. It consequently becomes pertinent now to inquire to what extent this court will respect the rulings of the Supreme Court of Hawaii on questions of local law. In Waialua Agricultural Co. v.

Christian, supra, 305 U.S. at pages 108, 109, 59 S.Ct. at page 30, 83 L.Ed. 60, the Court said: “This judicial tradition gives present substance to the rule of this Court that deference will be paid the understanding of territorial courts on matters of local concern. * , * * * * * “While the 34th

section of the Judiciary Act is not applicable to territories, the arguments of policy in favor of having the state courts declare the law of the state are applicable to the question of whether or not territorial courts should declare the law of the territories with the least possible interference.

It is true that under the appeal statute the lower court had complete power to reverse any ruling of the territorial court on law or fact but we are of the opinion that this power should be exercised only in cases of manifest error. * * * In so far as the decisions of the Supreme Court of Hawaii are in conformity with the Constitution and applicable statutes of the United States and are not manifestly erroneous in their statement or application of governing principles, they are to be accepted as stating the law of the Territory.

Unless there is clear departure from ordinary legal principles, the preference of a federal court as to the correct rule of general or local law should ■not be imposed upon Hawaii[Emphasis supplied] See also De Castro v. Board of Commissioners, 322 U.S. 451, 459, 64 S.Ct. 1121, 88 L.Ed. 1384. The foregoing rule was applied by this court in a very recent case in which, as here, an

interpretation of the Fifth and the Fourteenth Amendments was involved. In Young v. Territory of Hawaii, 9 Cir., 160 F.2d 289, 290, we said: “The due process clause of the Fourteenth Amendment ‘leaves the states free to enforce their criminal laws under such statutory provisions and common law doctrines as they deem appropriate; and does not permit a party to bring to the test of a decision in this court every ruling made in the course of a trial in the state court,’ Buchalter v.

New York , supra, 319 U.S. [427], pages 429, 430, 63 S.Ct. [1129], 1130, 1131 [87 L.Ed. 1492], And the same holds good of the Fifth Amendment in respect of the administration of the criminal laws of the Territory of Hawaii. [Cases cited] It follows that no federal question of substance is presented by the appeal.” It has been suggested that the Mangum decision, supra, supports the appellant’s position.

Yet the opinion in that case, 237 U.S. at pages 334, 335, 35 S.Ct. at page 590, 59 L.Ed. 969, referring to “due process of law,” uses the following language: “This familiar phrase does not mean that the operations of the state government shall be conducted without error or fault in any particular case, nor that the Federal courts may substitute their judgment for that of the state courts, or exercise any general review over their proceedings, but only that the fundamental rights of the prisoner shall not be taken from him arbitrarily or without the right to be heard according to the usual course of law in such cases.” See also Rescue Army v.

Municipal Court, 331 U.S. 549, 584, 67 S.Ct. 1409. The elaborate and carefully considered opinion of the court below in the instant case discloses that its dismissal of the writs of error was not done “arbitrarily”.

Applying the teaching of the Supreme Court of the United States in the Waialua Agricultural Co. case, supra, we find that the decision of the Territorial court is “in conformity with the Constitution and the applicable statutes of the United States,” is not “manifestly” erroneous in its “statement or application of governing principles,” and should “be accepted as stating the law of the Territory.” Therefore, there being no “clear departure from ordinary legal principles,” we are of the opinion that, even if we were to feel that greater leniency might well have been extended to the appellant herein, “the preference of a federal court as to the correct rule of general or local law should not be imposed upon Hawaii.” Waialua Agricultural Co. v.

Christian, supra. Accordingly, the judgments are affirmed. See also Notley v. McMillan, 9 Cir., 16 F.2d 273; Fukunaga v. Territory of Hawaii, 9 Cir., 33 F.2d 396. 397, certiorari denied, 280 U.S. 593, 594, 50 S.Ct. 39, 74 L.Ed. 611; Kimbrel v. Territory of Hawaii, 9 Cir., 41 F.2d 740, 741; Hill v. Carter, 9 Cir., 47 F.2d 869, 870, certiorari denied, 284 U.S. 625, 52 S.Ct. 10, 76 L.Ed. 532; Territory of Hawaii v. Gay, 9 Cir., 52 F.2d 356, 359, certiorari denied, 284 U.S. 677, 52 S.Ct. 131, 76 L.Ed. 572; Fernandez v. Andrade, 9 Cir., 59 F.2d 681, 683; Lord v.

Territory of Hawaii, 9 Cir., 79 F.2d 761, 764; Hawaii Consol. Ry. v. Borthwick, 9 Cir., 105 F.2d 286, 288.