Raise or lose: appellate discretion and principled decision-making.

• Author: Weigand, Tory A.
• Position: From IV. Principled Application of Informed Discretion C. Respect and Need for Advocate Input and Direct Response through Conclusion with footnotes, p. 249-294

3. Respect and Need for Advocate Input and Direct Response

   The integrity of appellate discretionary decision making is perhaps most undercut where the court eschews any input or presentation by the advocates. (312) Appellate courts continue, at times, to proceed to reach issues, including the issue of waiver, which were never addressed or briefed by the parties. (313)

   While the courts espouse the importance of the party presentation principle behind waiver, they equally declare that the court is not bound to accept or address the issues presented by the parties and can consider and frame issues on their own. Yet, the failure to provide advocate input even on the issue of waiver is unjustified and undercuts the legitimacy of the appellate determination. For instance, in Mately v. Minkoff, (314) the trial court entered judgment notwithstanding the verdict in a malpractice trial on a legal ground that was raised late but was otherwise fully briefed posttrial. (315) Although not raised in the motion for directed verdict, the plaintiff never argued waiver either before the trial court or on appeal. The appeals court, nonetheless, found the matter waived, reiterating the adage that arguments not raised in a motion for directed verdict cannot be raised in the motion for judgment notwithstanding the verdict. (316) It did so, however, otherwise ignoring the well-established rule that the failure to raise "waiver" at the time of the motion for judgment notwithstanding the verdict, never mind on appeal, is itself a waiver. (317) Most offensive was that the court found waiver under this circumstance sua sponte and reversed the judgment without ever seeking appellate argument from the advocates on the issue. (318)

   The concern is the loss of advocate presentation and the resulting loss of litigant and public acceptance. Due process concerns are, in fact, implicated where an appellate court decides an issue not raised or briefed, as the parties have been deprived of notice and an opportunity to be heard. (319) This includes not just the substantive underlying legal issue, but the decision to find or not find waiver. If the appealing party has not properly preserved the issue and has failed to make a proper and sufficient argument on appeal as to the applicability of any exceptions, a strong case exists for having the general rule control. (320)

   Fundamental to our adversary system is the right of advocacy by the interested parties. (321) If an appellate court deems certain legal principles, a statute, a regulation, or another legal source controlling, but which was not raised, it should give the advocate the opportunity to address that contention. There is nothing more frustrating to an advocate and devastating to the appellate process for the interested litigants to not have an opportunity to present argument both as to the merits and as to whether the court should consider the forfeited issue. Such an advocate should not be left with only the petition for rehearing avenue to first address the legal contention or grounds. Equally offensive is the failure of the court to address the material contentions. Appellate courts must be directly responsive to the contentions made. (322) The symbiotic relationship between the court and the advocates and litigants dictates such a practice. It is fundamental to the integrity of the appellate process. (323)

4. A Uniform Discretionary Standard

   Principled decision making as to the exercise of discretion not only requires advocate input and meaningful court disclosure but also demands clarity of the considerations informing the discretion. The myriad of criteria or factors that have crept into the discretionary exception to the general rule of raise or lose, together with the existence of two seemingly disparate lines of discretion, undercut the interests of equal treatment and principled decision-making. (324)

   i. Exceptional Circumstances Discretion: Unruly

   Beyond the Hormel statement that forfeiture will be excused "in exceptional cases in order to prevent a miscarriage of justice," the glosses upon the wording of this standard can differ markedly among courts. The case law includes references to "manifest injustice," "miscarriage of justice," "substantial miscarriage of justice," "gross miscarriage of justice," "the public interest," or "the interests of justice." The First Circuit, for instance, has stated, in some cases, that the exception applies only "in horrendous cases where a gross miscarriage of justice would occur" and that the new ground must be "so compelling as virtually to insure appellant's success." (325) How, for instance, that the term "gross" adds anything to the analysis or understanding is hard to see with the "virtually assuring success" equally incomplete in meaning. (326) Such generality only fuels the perception of un-principled or ad hoc decision-making. Further, any formulation of the governing criteria must be consistent with the underlying purposes for both the general rule of forfeiture and the need for exception in particular circumstances.

   Even where courts, like the First Circuit, have more fully and admirably explored and declared the contours of the discretion, there remains inconsistent application, including the development of seemingly contradictory considerations. For instance, it has been noted that constitutional issues, like any other issue, can be waived, (327) yet the constitutional status of an issue has been stated to also favor exception to the raise or waive rule. (328) Similarly, waiver has been found to be particularly appropriate where the party is seeking adoption of a new legal principle while, at the same time, the legal nature of an otherwise waived issue favors exercise of discretionary review. Additionally, if the issue that is waived is deemed to be strong or decisive, then exception to waiver is favored, leaving the waiver issue to whether or not the otherwise waived argument was a winner. This seems contradictory to the recurring statement that "objections, issues or claims--however meritorious that have not been raised in the trial court are deemed waived," (329) or that "[c]ourts typically invoke [the raise or lose] rule to avoid resolving a case based on an unaired argument, even if the argument could change the outcome. " (330) Also, it is stated that a court need not sit idly by where the parties have not raised or addressed applicable law yet must also not ignore the theories upon which the underlying matter was tried. (331)

   In addition to conflicting considerations, courts have, collectively, identified no less than thirty (30) factors, considerations, or separate singular exceptions to the raise or lose general rule. It is hard to find even two jurisdictions that consider the very same factors as controlling, although there are certainly similarities. The lack of consensus and multitude of factors creates fertile ground for unbridled discretion.

   There is, likewise, difficulty in weighing the factors in any given case. The diversity of factors and the substantial removal of many from the error correcting function render it virtually impossible to devise any workable scale or means of measure as to value any one "factor" versus another. Equal treatment and principled decision-making is thus threatened.

   In a recent Third Circuit case, for example, the court affirmed the trial court's determination that a state's Prevailing Wage Regulations improperly discriminated against out of state contractors in violation of the Commerce Clause. (332) In holding that exceptional circumstances existed allowing for review, the majority relied upon the following: (1) the strong public interest in considering all arguments, particularly because the case involved "crucial and unresolved issues of state sovereignty and state procurement spending, and tests the limits of the dormant Commerce Clause in this field"; (2) the issue had not yet been addressed by the Third Circuit; (3) the issue was sufficiently "intertwined" with other contentions that had been preserved; (4) the issue was one of law; and (5) addressing the issue would "preserve judicial resources." (333)

   In a concurring opinion, however, Judge Hardiman disagreed. While he agreed that the argument on appeal implicated significant issues as to state sovereignty and was one of law, in his opinion this was not enough to constitute "exceptional circumstances." (334) Judge Hardiman found that since the construction project at issue had been completed and that all that was at issue was "some $10,000 in wages" that had been paid to some apprentices, there was no urgency to address this issue, as it could be presented in another case upon a full trial record. (335) Also significant was the belief that nothing in the record indicated that the failure to make the contention below was inadvertent. (336) The argument was a recognized exception and it was, according to Judge Hardimann, unlikely that counsel had missed it, as opposed to it having been a deliberate decision to focus on other arguments. (337)

   This debate is no stranger to the First Circuit. Even in the leading decision in Harwood, where the court delineated the various factors informing the discretion as to review of forfeited issues under the "exceptional circumstances" exception, there was no unanimity in application. The majority found that there was no absence of necessary fact finding and that the issue was one of law; that the issue was one of "constitutional magnitude"; that it was "highly persuasive"; that there was no prejudice or inequity to the opposing party; that the issue had been fully briefed and presented; that the failure to preserve was inadvertent rather than deliberate; and that "perhaps most salient" the otherwise forfeited issue "implicates matters of great public import, and touches upon policies as basic as federalism, comity, and respect for the independence of democratic institutions."...