Can Courts Introduce Legal Issues Not Raised by the Parties?
Briefs have been filed. You and your adversary have joined issue on the questions for judicial decision; but then the court introduces its own new legal issues into the case and, further, invites third parties who haven't participated in the case to submit amicus briefs. You're now watching the dispute evolve outside your control. Can judges do that?
July 02, 2020 at 03:37 PM
10 minute read
Litigate long enough and it's bound to happen: The briefs have been filed, and you and your adversary have joined issue on the questions presented for judicial decision; but then, rather than decide those questions, the court introduces its own new legal issues into the case. The court will typically ask the parties to respond to these new issues, but sometimes courts go further and invite third parties who previously hadn't participated in the case to submit amicus briefs with their views. Next thing you know, you're watching the dispute evolve before your eyes and outside your control.
Can judges do that?
Most litigators would probably answer yes, thinking that judges generally have wide leeway to decide cases based upon the legal principles they consider applicable, irrespective of how the parties framed the dispute. However, this conventional wisdom was called into question by the Supreme Court's decision earlier this year in United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020), where the court slapped the Ninth Circuit's hand for deciding an appeal on an issue not raised by either party.
Supreme Court Slaps the Hand
The defendant in Sineneng-Smith, a California immigration attorney, was charged with criminally "encourag[ing] or induc[ing]…alien[s] to come to, enter, or reside in the United States…in violation of law." 8 U.S.C. §1324. She did so, allegedly, by charging her clients for assistance in pursuing a purported path to lawful permanent resident status that she knew they did not actually qualify for. In the district court, her counsel pressed several arguments for why the First Amendment did not allow criminal punishment for her conduct. The district court rejected the arguments and allowed the case to be tried, and a jury found the defendant guilty. She appealed to the U.S. Court of Appeals for the Ninth Circuit, making essentially the same First Amendment arguments.
Rather than rule on these arguments, the Ninth Circuit panel invited three advocacy groups to file amicus briefs on questions the defendant had not raised, including whether the statute of conviction was unconstitutional under the First Amendment's overbreadth doctrine, which forbids courts from enforcing laws that broadly chill protected speech, even when the activity of the litigant before the court could have been proscribed.
After a second round of oral arguments on the overbreadth theory (at which the amici were afforded more speaking time than the defendant's counsel), the Ninth Circuit held that the statute was indeed, as it had postulated, unconstitutionally overbroad, and it reversed the defendant's conviction.
After the Supreme Court granted the government's petition for certiorari, court watchers prepared for a potentially important First Amendment decision. But, the decision the court handed down on May 7, 2020 was based not on the First Amendment, but entirely on procedure. Without addressing any of the First Amendment issues argued in the lower courts, the Supreme Court (per Justice Ruth Bader Ginsburg) unanimously held that the Ninth Circuit's manner of adjudicating the appeal "departed so drastically from the principle of party presentation as to constitute an abuse of discretion." According to the court, the principle at stake was that courts should "rely on the parties to frame the issues for decision" and act as "neutral arbiters of matters the parties present." The Court vacated the Ninth Circuit's decision and remanded the case for reconsideration.
An Odd Decision
The court's decision in Sineneng-Smith was surprising for several reasons. First, it appears to be the first time that the Supreme Court has reversed a lower court for violating the so-called "principle of party presentation." To be sure, litigators are familiar with a number of well-established rules and doctrines related to the primacy of the parties in setting the issues for judicial decision, such as waiver and forfeiture or the limits of appellate jurisdiction absent a notice of appeal or cross-appeal. But insofar as the Supreme Court reversed the Ninth Circuit based not on any such commonly applied rules, but rather based on the "party presentation principle" alone, it was a novel decision.
Second, it is not obvious that Sineneng-Smith's holding can be reconciled with the Supreme Court's own practices, as the court itself often strays from the parties' arguments when it decides cases. As Professor Amanda Frost noted in her 2009 article in the Duke Law Journal, The Limits of Advocacy, there have been multiple landmark Supreme Court cases decided on grounds never raised by the parties. One example Frost highlights is that no party in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), argued that the Supreme Court should overrule Swift v. Tyson, 41 U.S. 1 (1842), and hold that federal courts sitting in diversity jurisdiction lack the constitutional power to create a federal common law. The court's holding, a standard part of the 1L curriculum, was reached sua sponte.
A reader of Professor Frost's article could be forgiven for thinking that the Supreme Court has engaged in more extreme judicial issue creation than the Ninth Circuit did in Sineneng-Smith. (The court supplemented the Sineneng-Smith opinion with an addendum of cases in which it had called for supplemental briefing or appointed amicus curiae within the past five years, apparently—and somewhat defensively—trying to distinguish its own practices from those the Ninth Circuit employed). Indeed, Sineneng-Smith is ironically itself an example of sua sponte judicial issue creation—no party before the Supreme Court argued that the Ninth Circuit had violated "the principle of party presentation."
Moreover, the court offered no explanation as to how to square its decision with an earlier pronouncement by the court: "[w]hen an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law." Kamen v. Kemper Financial Services, Inc., 500 U.S. 90, 99 (1991). Given that the defendant in Sineneng-Smith did assert a First Amendment defense, albeit not based on overbreadth, why was overbreadth not just a new First Amendment "theory" that, under Kamen, was permissible for the Ninth Circuit to identify and apply? The Ninth Circuit panel made essentially this point in saying that overbreadth was merely a new argument to support the defendant's consistent First Amendment claim, citing to a case, Citizens United v. FEC, 558 U.S. 310, 331 (2010), where the Supreme Court itself adopted substantially similar reasoning in enlarging (and then endorsing) the First Amendment arguments the party raised.
Indeed, it would seem especially appropriate for a court itself to raise overbreadth, which, rather unusually in the law, provides for invalidation based on circumstances and the rights of parties not before the court. See, e.g., Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 799-800 (1984). Insofar as overbreadth litigation entails assessing the risk that the law will suppress speech elsewhere, the court seems, if anything, better qualified than the parties to initiate exploration of such hypothetical facts. (There aren't many Supreme Court oral arguments where justices do not question counsel about hypothetical scenarios far removed from the facts at hand.) However, Sineneng-Smith took exactly the opposite view, highlighting that overbreadth is "strong medicine" and thus treating the Ninth Circuit's interjection of that issue as aggravating rather than mitigating its departure from the "party presentation" rule.
Questions to Consider
Given the above, what does Sineneng-Smith mean for the power of a judge to introduce issues into a case that were not raised by the parties? Here are two questions to consider.
First, what precisely is the scope of the "party presentation" rule that the Supreme Court invoked in Sineneng-Smith? The court declared that the Ninth Circuit had committed a "radical transformation of [the] case" that was "well beyond the pale," but the court never explained precisely why. Was it because the panel suggested a different form of First Amendment challenge than the defendant was making? Was it because the panel invited amici to address the issues it raised? Because it invited particular amici to participate in the case? Because it called for a second round of briefing and oral argument, at which, the court said, counsel for the parties were assigned a "secondary role" to amici? Or some combination of these?
Meanwhile, the court's opinion also stated that the party presentation principle is "not ironclad," and that courts are "not hidebound by the precise arguments of counsel" and may in some circumstances play a "modest initiating role." Sineneng-Smith offers scant guidance to lower courts that will have to determine the limits of their own decision-making powers in future cases and distinguish permissible sua sponte judicial practices from impermissible ones.
Second, whatever the scope of the party presentation rule, what is its source? Notably, the Supreme Court's opinion in Sineneng-Smith cites no statutory provision, rule of civil procedure, or any other codified law as the basis for its holding. Are "party presentation" principles a matter of constitutional due process, such that both state and federal courts are bound by them? Or is the party presentation rule implied by Article III and the limited jurisdiction of the federal courts, meaning it does not necessarily apply to the state courts? Or is it a "prudential" rule that courts have (some) discretion to disregard in particular cases?
Conclusion
It is too soon to tell what effect, if any, Sineneng-Smith will have on the future of judging. After Sineneng-Smith, appellate courts will inevitably be faced with losing litigants contending that the lower court went too far in departing from the parties' arguments. In addressing these claims, we suspect that courts will want to leave themselves room to provide at least some direction to the parties appearing before them or otherwise to play at least a "modest initiating role." That is, whatever the court has to say about the importance of "party presentation," and however much judges may wish to avoid accusations of not being sufficiently "neutral" or "passive," they presumably want to get cases right.
Indeed, it is easy to think of cases where it would be deeply problematic were a court not to raise an issue that neither party had presented; for example, what if a defendant was being prosecuted under a statute that the Supreme Court had recently declared unconstitutional, yet neither party noticed? As such, even after Sineneng-Smith, if the parties have simply missed an apparently important issue, judges will continue to have an inclination to "inject" that issue (even if only indirectly, through a suggestive question at oral argument) and (after briefing) even decide the case on that basis. And Sineneng-Smith's language, e.g., that the party presentation principle is "not ironclad," provides courts with a basis to do so. Only time will tell whether future cases will crystallize Sineneng-Smith's vague pronouncements into real limits on courts' power to frame the issues in the proceedings before them.
Timothy Macht is a partner at Walden Macht & Haran. Derek Borchardt is an associate at the firm.
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