Welcome to Scribd. Sign in or start your free trial to enjoy unlimited e-books, audiobooks & documents.Find out more
Download
Standard view
Full view
of .
Look up keyword
Like this
1Activity
0 of .
Results for:
No results containing your search query
P. 1
State of Hawaii Response to Motion to Strike

State of Hawaii Response to Motion to Strike

Ratings: (0)|Views: 32|Likes:
Published by Alan Beck
response
response

More info:

Published by: Alan Beck on Jun 05, 2013
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

09/13/2013

pdf

text

original

 
APPEAL
NO.
12-17808
IN
THE
UNITED
STATES
COURT
OF
APPEALS
FOR
THE
NINTH
CIRCUIT
GEORGE
K.
YOUNG,
JR.,
V.
Plaintiff-Appellant,
STATE
OF
HAWAII
and
NEIL
ABERCROMBIEin
his
capacity
as
Governor
of
the
State
of
Hawaii;
DAVID
M.
LOUIE
in
his
capacity
as
State
Attorney
General;
COUNTY
OF
(captioncontinued)
D.C.No.
1:12-cv-00336-HG-BMKAPPEALFROM
A
JUDGMENT
OF
THE
UNITED
STATES
DISTRICT
COURTFORTHE
DISTRICT
OF
HAWAII
THE
HONORABLEHELEN
GILLMOR,
DISTRICT
JUDGE
AMICUS
CURIAE
STATE
OF
HA
WAIFS
RESPONSE
TO
PLAINTIFF
YOUNG’S
MOTION
TO
STRIKE
“AMICUS”
BRIEF
OF
STATE
OF
HAWAII
CERTIFICATE
OF
SERVICE
GIRARDD.LAU
3771
Solicitor
General,
State
of
Hawaii
KIMBERLY
TSUMOTO
GIJIDRY
7813
FirstDeputy
Solicitor
General,
State
of
HawaiiROBERT
T.
NAKATSUJI
6743
Deputy
Solicitor
General,
State
of
Hawaii
Department
of
the
Attorney
General
425
QueenStreet
Honolulu,Hawaii
96813
Tel:(808)586-1360
Fax:
(808)586-1237
Attorneys
for
Amicus
Curiae
State
of
Hawaii
Case: 12-17808 06/04/2013 ID: 8655089 DktEntry: 45 Page: 1 of 8
 
HAWAII,
as
a
sub-agency
of
the
State
of
Hawaii
and
WILLIAM
P.
KENOI
in
hiscapacity
as
Mayor
of
the
County
of
Hawaii;
and
the
Hilo
County
PoliceDepartment,
asa
sub-agency
of
the
County
of
Hawaii
and
HARRY
S.
KUBOJIRI
in
his
capacity
as
Chief
of
Police;
JOFIN
DOES
1-25;
JANE
DOES
1-25;
CORPORATIONS
1-5,
AND
DOE
ENTITIES
1-5,
Defendants-Appellees.
AMICUS
CURIAE
STATE
OF
HAWAII’S
RESPONSE
TO
PLAINTIFF
YOUNG’S
MOTION
TOSTRIKE
“AMICUS”
BRIEF
OF
STATE
OF
HAWAII
Plaintiff
Young’s
motion
tostrike
the
State
of
Hawaii’s
amicus
brief
(in
support
of
County
of
Hawaii
Defendants-Appellees,
and
in
support
of
affirmance)
is
baseless.
First,FRAP
29(a)
is
unambiguously
clear
that
a
statemay
file
an
amicus
brief
without
leave
of
courtor
consent
of
the
parties.1
The
plain
language
of
that
rule
supports
rejection
of
Plaintiffs
motion.Moreover,
thereasonthe
State
of
Hawaiidid
~
file
a
Answering
Brief
as
a
party
is
because,
as
noted
in
footnote
1
of
our
amicus
brief,
the
State
of
Hawaii
(along
with
its
Governor
and
Attorney
General)
was
dismissed
below
as
a
party
defendant
on
immunity
grounds.Clerk’sRecord
42
at
9-14.
And,
equally
importantly,
Plaintiff
Youngdid
~
challenge
that
immunity
dismissal
of
the
State
1
FRAP
29(a)
reads
in
relevant
part:a
state
may
file
an
amicus-curiae
brief
without
theconsent
of
theparties
or
leave
of
court.”
Case: 12-17808 06/04/2013 ID: 8655089 DktEntry: 45 Page: 2 of 8
 
of
Hawaii(or
of
its
Governor
and
Attorney
General)onappeal.2Thus,
the
State
of
Hawaii,
afteritsdismissal
below
on
immunity
grounds,
and
Young’s
failure
to
appeal
thatdismissal,
was
and
is
no
longer
a
regular
parry
tothis
appeal.
Parties
file
AnsweringBriefs,
and
Hawaii
is
no
longer
a
regularparty.
(Nor
is
any
other
State
entity
or
state
official
--
e.g.,
the
Governor
or
the
Attorney
General
--
a
regular
party
to
this
appeal,
for
the
same
reason.).3
Accordingly,
the
State
of
Hawaii
--
no
longer
a
party
to
theappeal
--
was
fully
entitled
to
participate
instead
as
an
amicuscuriae,
and
may,
under
FRAP
29(a),
file
an
amicus
brief
without
consent
of
the
parties,
or
leave
of
court
(because
it
is
a
“state”).
And
under
FRAP
29(e),
the
time
for
filing
such
an
amicus
brief
is
“no
later
than
7
days
after
the
principal
brief
of
the
party
being
supported
is
filed.”
Thus,
Hawaii’s
amicus
brief,electronically
filed
on
May
31,
2013
--
which
is
2
ç
Opening
Brief
(NinthCircuit
Docket
entryNo.
6),
especially
pp.
1-2
(entire
brief,
including
statement
of
issues,does
not
challenge
dismissal
of
State
defendants
on
immunity
grounds).
See
Petersonv.
California,
604
F.3d
1166,
1171
n.4
(9th
Cir.
2010)
(issues
not
discussed
in
brief,
even
if
raised
in
statement
of
issues,are
waived).
~
Moreover,
it
is
not
apparent
what
the
former
State
parties(i.e.,
the
State
of
Hawaii,
its
Governor,
and
its
Attorney
General)
would
haveargued
in
a
party
Answering
Brief.
They
certainly
would
not
haveargued
about
thecorrectness
of
the
immunity
dismissal,
because
that
issueis
not
before
this
appellate
Court
(plaintiff
havingnot
appealed
that
ruling).
Nor
would
it
seem
appropriate
for
the
former
State
parties
to
address
the
constitutional
issues
when
the
constitutional
claims
no
longer
run
against
them
as
defendants
(the
claims
against
the
former
State
parties
as
defendants
having
been
dismissed
below
on
immunity
grounds,
noappeal
having
been
taken
of
that
immunity-based
dismissal).
2
Case: 12-17808 06/04/2013 ID: 8655089 DktEntry: 45 Page: 3 of 8

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->