HAWSCT: Court Of Appeals Cannot Dismiss Appeal Sua Sponte For Failure To Conform To The Rules

by Robert Thomas, Inverse Condemnation, February 14, 2014

You file a crap brief with an appellate court. Shame on you.

The court of appeals, understandably displeased with your lack of skills -- even under the low standards applicable to pro se appellants -- dismisses your appeal sua sponte.

Shame on them, says the Hawaii Supreme Court in In re Marn Family Litigation, No. SCWC-10-0000181 (Feb. 12, 2014), where the court held that Haw. R. App. P. 30 required the court give notice of its intent to dismiss beforehand, even where the brief utterly failed to comply with the requirements of Rule 28:

... alleged 17 "areas 'observed' to be highly questionable." The opening brief included no table of authorities, instead referencing the table of authorities in the opening brief Alexander filed in another appeal before the ICA. The brief noted that there were four other appeals currently pending in the Marn Family Litigation and incorporated by reference all records and briefing from each of these cases. Alexander also referred the court to prior appeals for the relevant standard of review. The argument section of Alexander’s brief included eleven sections, cited no authority, and rarely cited to the record.

Slip op. at 3. An appellate court is vested with a lot of discretion when a party's brief fails to comply with Rule 28. It can disregard arguments, it can levy sanctions, it can strike the brief, or it can rule against the party on the merits. It can even dismiss the appeal outright. But Rule 30 requires it to give the offending party notice, and the chance to explain:

Any party who may be adversely affected by application of this rule may submit a memorandum, affidavits, or declarations setting forth the reasons for non-conformance with these rules.

Haw. R. App. P. 30. To be able to submit a reason, the offending party must first be notified. "Therefore, we interpret HRAP Rule 30 as requiring that the appellate court give notice to the parties of any noncompliance with HRAP before dismissing an appeal, striking a brief, or ordering monetary or other sanctions." Slip op. at 11.

The right result, for sure, although it is frustrating to be on the opposite side of a brief that does not conform to the rules. There have been a few times in our experience that the other side filed a really, really badly formatted and argued brief, and it makes opposing it twice the work: you first need to clear up their arguments so you can refute them properly.

More about the decision here, from Rebecca Copeland's Record on Appeal.

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