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Adventures in the Law: Runaway Judges

Norm Tabler


  • The Ninth Circuit panel strayed from traditional legal procedures during the appeal of a criminal conviction, delving into a constitutional question not raised by the prosecution, defendant, or trial court.
  • The panel invited external organizations to argue and brief the chosen question, sidelining the actual parties involved in the case.
  • Supreme Court Justice Ruth Bader Ginsburg criticized this departure from the principle of party presentation, emphasizing that the parties, not the judges, define the issues.
  • The Supreme Court unanimously ruled that the Ninth Circuit panel's behavior constituted an abuse of discretion, vacating the judgment and remanding the case for an appeal aligned with the issues shaped by the parties.
Adventures in the Law: Runaway Judges Noskowski

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When a jury won’t follow the rules, we call it a runaway jury. If judges won’t follow the rules, should we call them runaway judges?

The Ninth Circuit panel hearing the appeal of a criminal conviction was fascinated by a question of constitutional law. Unfortunately, it wasn’t a question raised by the prosecution, the defendant, or the trial court. Undeterred, the panel brought in outside organizations to argue and brief its chosen question and then resolved the case by answering it.

Not so fast, said Supreme Court Justice Ruth Bader Ginsburg in one of her last opinions. In most respects the parties and their lawyers must defer to the authority of the judges hearing the case. But that authority is not necessarily dispositive of the case issues, because: the parties, not the judges, get to define the issues.

Evelyn Sineneng-Smith ran an immigration consulting business. For a fee, she assisted clients working without authorization in the U.S. in filing applications for labor certifications that provided a path to legal permanent resident status. But there was a catch˗˗a giant one: The program had expired, so every application was hopeless.

Evelyn was indicted for violating a subsection of 8 U.S.C. § 1324, Bringing in and Harboring Certain Aliens, that makes it a felony to encourage or induce an alien to enter or reside in the U.S., knowing that entering or residing here violates of the law.

In the District Court Evelyn made a two-part argument: (a) the subsection didn’t apply to her conduct; (b) but if it did, then, as applied to her, it violated the Petition and Free Speech Clauses of the First Amendment. She was convicted.

On appeal to the Ninth Circuit, Evelyn repeated the same argument. But the panel hearing the case apparently wasn’t interested in that argument. It was interested in a different, broader question: whether on its face the subsection violated the First Amendment.

Undaunted by the fact that the question hadn’t been addressed by Evelyn, the government, or the trial court, the panel picked three outside organizations to serve as amici curiae and directed them to argue and brief the issue. The lawyers for Evelyn and the government were assigned to the back seat.

The panel invited the three organizations, together with all other, uninvited amici, to feel free to “brief such further issues as they … believe the law, and the record calls for.”

Confirming the back-seat status of the two actual parties, the panel allotted them half as much argument time as the three invited amici organizations.

Based on arguments and briefs of the amici, the panel answered the question it had chosen, ruling that the subsection was, indeed, unconstitutionally overbroad. Evelyn’s conviction under the subsection was overturned.

A unanimous Supreme Court ruled that the Ninth Circuit panel’s behavior “departed so drastically from the principle of party presentation as to constitute an abuse of discretion (emphasis added).” The court vacated the judgment and remanded the case “for an adjudication on the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel.”

Just what is the principle of party presentation? It’s the principle that in our system of adjudication, in both civil and criminal law, we rely on the parties to frame the issues for decision, and we assign the courts the rule of neutral arbiter of the issues presented by the parties. The rare situations warranting departure from the principle arise primarily in cases of pro se litigation.

The case is U.S. v. Sineneng-Smith, 590 U.S. ___, 140 S. Ct. 1575 (2020).