A U.S. Supreme Court case ended in a reversal, but not for any of the reasons argued by the parties. Rather, the Supreme Court faulted an appeals panel for reversing the defendant’s conviction based on an argument that, ironically, neither of the parties had raised. The Court noted that the appellate court’s handling of the case violated the principle of party presentation, which requires courts to decide cases based on the arguments presented by the parties. The Court acknowledged that the doctrine is not “ironclad,” going so far as to include an appendix of decisions in which the Supreme Court had appointed amici to argue issues not presented by the parties. But the Court chastised the appellate court, acknowledging that while courts are not “hidebound” to the arguments presented by the parties, the appellate court’s “radical transformation of this case goes well beyond the pale.”
ABA Litigation Section leaders say that the case is an important reminder of the basic structure of our adversarial legal system and contains important lessons for litigators presenting arguments before trial and appellate courts.
Immigration Lawyer Crosses the Border into Criminal Territory
The decision arose from a criminal case with immigration undertones. The defendant, Evelyn Sineneng-Smith, was a lawyer turned immigration consultant who marketed her services to immigrant workers in the home healthcare industry, especially recent arrivals from the Philippines. The defendant deceived her clients into believing that she could help them get their green cards by first filing for work authorization in the United States on their behalf and then, after establishing a work history, petitioning for an adjustment of status to become permanent residents.
Despite the fact that most of her clients had little money, the defendant would require them to sign lucrative retainer agreements, charging $5,900 to file an application for work authorization and an additional $900 to file an application for permanent residency. The government estimated that she collected over $3 million for her work.
But the defendant was aware all along that, at least under then-existing law, she would not succeed in establishing lawful status for her clients as she had promised. The rule the defendant was working under applied only to people who were present in the United States on December 21, 2000, and applied for certification to work before April 30, 2001. Many of the defendant’s clients had arrived years after these deadlines had come and gone.
A federal grand jury charged Sineneng-Smith with three counts of violating 8 U.S.C. § 1324(a)(1)(A)(iv), which makes it a crime to “encourage or induce an alien to . . . reside in the United States” when the person knows that the alien will be violating the law by residing in the country. The grand jury also charged the defendant with several counts of filing false tax returns and committing mail fraud.
The defendant moved to dismiss the section 1324 charges, arguing that filing applications for work authorization did not violate the statute—essentially arguing that the law applied only to a narrow scope of speech or conduct and not literally to any activity that encouraged an immigrant to stay in the country without authorization.
Alternatively, the defendant argued that if merely filing a losing application did violate the statute, then the law violated the First Amendment because it criminalized speech based on its content and was overly vague—this “vagueness” challenge would become an important part of her appeal. The U.S. District Court for the Northern District of California denied her motion to dismiss the charges, and the jury convicted her on several counts, including under section 1324. The consultant appealed.
Ninth Circuit (Overly) Broadens the Issue
In the Court of Appeals for the Ninth Circuit, Sineneng-Smith repeated her arguments from below, including her vagueness argument. The appellate court received briefs on the issues, heard oral argument, and appeared set to rule on the case. Then things took a turn.
The presiding panel decided to add three new issues to the appeal: (1) whether section 1324 violated the First Amendment because it was overly broad; (2) whether the statute was void for vagueness; and (3) whether the statute included an implicit mens rea element. The appellate court would eventually rule on only the overbreadth issue and decide in the defendant’s favor.
The panel then took a somewhat unusual step, though not unprecedented, and solicited arguments from interested amici on the issues and provided amici with time at oral argument. In fact, the panel granted amici the majority of the time in the second argument.
Amici can, and often do, play an important role in focusing arguments and bringing new perspectives. But Section of Litigation leaders agree that soliciting amici to argue issues not pressed by the parties was an unusual move.
“The normal practice in important litigation is for the parties themselves to solicit amici to support their positions,” explains Thomas J. Donlon, Stamford, CT, cochair of the Section’s Amicus Curiae Briefs Committee. “These amici often represent organizations with a long history of litigating in a certain area, such as the ACLU or the NAACP Legal Defense Fund in civil rights cases or the U.S. Chamber of Commerce in business cases. Their experience and expertise can help the court in considering the wider effects of a decision, but generally these organizations are not adding new issues to the case,” he continues.
The defendant adopted the amici’s arguments—as the Supreme Court said, “How could she do otherwise?”
In total, the appellate court received nine amicus briefs. When it held oral argument, the amici took the lead, arguing for more time than defendant’s counsel and generally pressing the main issues. The defendant adopted the amici’s arguments—as the Supreme Court said, “How could she do otherwise?”
The Ninth Circuit’s opinion reversed the defendant’s conviction based on its finding that the statute was overly broad. As the Supreme Court later took pains to point out, this overbreadth argument was, in at least one sense, the opposite of the defendant’s argument to the trial court that the statute was too narrow to encompass her conduct. The Ninth Circuit determined that the statute “restrict[ed] a substantial amount of protected speech” because it criminalized “pure advocacy on a hotly debated issue in our society.”
The appellate court briefly considered the government’s argument that the overbreadth claim was forfeited by the defendant. But the appellate court determined, citing the Supreme Court’s decision in Citizens United v. Federal Election Commission, that by making a First Amendment claim, the defendant had preserved the issue. Therefore, the overbreadth claim was “—at most—a new argument to support what has been a consistent claim.”
Justices Police the Procedural Borders
The Supreme Court granted certiorari in the case, received briefs, and heard oral arguments. From the initial petition through the oral arguments, however, there was little indication that the parties thought there was a problem with the party presentation rule.
True, the issue was briefly mentioned in the government’s petition for certiorari, where it noted that “the court of appeals sua sponte directed the parties to submit additional briefing to address three issues, none of which respondent herself had raised.” But the government’s argument was cast as part of its broader strategy of arguing that the appellate court had read the statute too broadly and focused on fanciful hypotheticals far from the facts of the case.
But something changed on the way to the decision. The late Justice Ruth Bader Ginsburg’s unanimous opinion for the Court dodged all the weighty First Amendment issues, complicated criminal law concerns, and deep political implications of the case, instead basing its holding on the Ninth Circuit’s failure to follow the party presentation doctrine, a somewhat formalistic argument.
Courts “do not, or should not, sally forth each day looking for wrongs to right. They wait for cases to come to them, and when cases arise, courts normally decide only questions presented by the parties.”
The Court summarized the doctrine by explaining that “in both civil and criminal cases, in the first instance and on appeal, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” Courts “do not, or should not, sally forth each day looking for wrongs to right. They wait for cases to come to them, and when cases arise, courts normally decide only questions presented by the parties.”
The Court noted that the American legal system, unlike legal systems in many European countries, tries to take advantage of the adversarial parties’ self-interest and competitiveness. In many European countries, judges take a more “paternalistic” approach to advocacy, according to a law review article quoted by the Court, at the expense of “somewhat muted adversarial zeal.”
Still, Justice Ginsburg acknowledged that the principle of party presentation is not “ironclad.” The Court itself had several times raised issues not presented by the parties and appointed amici to “determine whether a case presented a controversy suitable for the Court’s review”; “to determine whether the case could be resolved on a basis narrower than the question presented”; or “to clarify an issue or argument the parties raised.”
Another well-established exception to the party presentation principle concerns questions about the court’s jurisdiction. “A question about whether the court has subject matter jurisdiction in a case is one that a court should, and often does, raise on its own, even if a party does not present it. That is true at every level of the judiciary, both state and federal, from the trial court to the highest appellate court. That is a baked-in exception to the party presentation rule,” states Steven Finell, Santa Rosa, CA, cochair of the Section’s Appellate Rules and Statutes subcommittee of the Appellate Practice Committee.
The Court also acknowledged that it had appointed amicus to argue in support of a position that prevailed on appeal but that the party subsequently abandoned—such as when a change of political leadership leads the government to take a new position.
Here, though, the Ninth Circuit had essentially acted to preserve an argument the defendant had forfeited. While the Ninth Circuit had found the issue preserved because the defendant had consistently asserted a First Amendment claim, the Supreme Court emphasized the difference between vagueness and overbreadth.
Similar to facial challenges of a statute, overbreadth claims are based on harms to third parties and not the defendant—meaning the defendant can still prevail even if his or her speech is clearly not protected by the First Amendment. (Justice Clarence Thomas, in his concurrence, expressed concerns with the continued existence of overbreadth claims.)
Unlike a facial challenge, however, a defendant’s overbreadth claim does not need to show that the statute is unconstitutional in all of its applications but merely that “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.”
A vagueness claim, by contrast, is a challenge to the application of the statute to the defendant herself. The Supreme Court emphasized this difference in faulting the Ninth Circuit for converting a claim that the defendant’s speech was protected into a general claim that the law was unconstitutional in a substantial number of its applications.
In many European countries, judges take a more “paternalistic” approach to advocacy, according to a law review article quoted by the Court, at the expense of “somewhat muted adversarial zeal.”
An Important Win for Advocates and Adversaries
Section leaders agree that while it was unusual to see an appeal decided on the party presentation rule, the underlying principle is an important one for trial and appellate litigators alike. “It is rare to see the party presentation doctrine used in quite this way,” opines Finell, “because generally the party presentation doctrine is an unstated rule of appellate procedure. Courts usually just are not interested in adding issues not contained in the briefs.”
While courts will sometimes be more permissive in interpreting pro se filings, or in policing their own jurisdiction in general, judges are wary of shifting arguments, according to Section leaders. “If the appellate court sees that a party is raising an issue not addressed by the trial court, it will often treat the issue as waived out of a concern that attorneys are sand-bagging the trial judge. Further, appellate courts will be wary of attorneys reserving certain arguments in an attempt to get another bite at the apple in case their initial argument fails at trial,” observes Donlon.
Yet, Section leaders caution strongly against a kitchen sink approach to appellate practice. “The kitchen sink approach would run afoul of one of the most important rules of appellate practice—give the court your two or three best issues to reverse on. When an appellate court sees 10 issues in a brief, the panel begins to think that probably none of the issues have merit,” advises Donlon.
The decision is an important vindication of one of the most basic tenets of the American legal system, Section leaders agree. Lawyers should take heed of the Court’s instruction that “as a general rule, our system is designed around the premise that parties represented by competent counsel know what is best for them and are responsible for advancing the facts and argument entitling them to relief,” concludes Donlon.
Stephen Carr is an associate editor for Litigation News.
Erik A. Christiansen, “New Federal Rules Modernize Federal Appellate Practice,” Litigation News (Oct. 8, 2019).
C. Thea Pitzen, “Appellate Review Allowed Despite Failure to Preserve Issue Below,” Litigation News (May 30, 2018).
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