Raising New Issues on Appeal, 0717 COBJ, Vol. 46, No. 7 Pg. 24
| Author | A NNE ZOLTANI, J. |
APPELLATE PRACTICE
Waiver and Forfeiture in Colorado's Federal and State Appellate Courts
A NNE ZOLTANI, J.
This article addresses the doctrines of waiver and forfeiture in Colorado's federal and state appellate courts by examining the judicially created general rule that no new issues may be raised on appeal and its principal exceptions.
Under the fundamental principle that "a party may not lose in the district court on one theory of the case, and then prevail on appeal on a different theory[,]"1 appellate courts generally will not reach the merits of an issue if the contended error was not preserved below. One rationale for this general rule is that parties must be given '"the opportunity to offer all the evidence they believe relevant to the issues...'"2 Concomitantly the general rule against review of unpreserved errors prevents litigants from being "surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce evidence."3 Nevertheless, the reporters are replete with cases addressing when appellate courts will consider unpreserved issues. This article examines the doctrines of waiver and forfeiture and exceptions to those doctrines, as applied by the Tenth Circuit and the Colorado appellate courts.
Forfeiture Versus Waiver in the Tenth Circuit
Appellate courts refer to issues not raised below as being "waived"4 or "forfeited."5 Waiver, however, is different from forfeiture.6 While the two are distinct procedural concepts, over 25 years ago, Justice Scalia noted that "our cases have so often used them interchangeably that it may be too late to introduce precision."7
Despite the failure of many federal courts to draw a consistent distinction, a clear difference between waiver and forfeiture has emerged in the U.S. Court of Appeals for the Tenth Circuit.8 Following the waiver and forfeiture framework set by the U.S. Supreme Court, the Tenth Circuit has held that waiver "is the intentional relinquishment or abandonment of a known right [,]"9 which extinguishes any error that the lower court may have committed.10 Applying these definitions, the Tenth Circuit has held, for example, that an abandoned objection is waived.11 Similarly, issues related to invited errors are also waived.12 In the end, "'a party that has waived a right is not entitled to appellate relief" on that issue.13
While waiver is intentional, forfeiture "comes about through neglect."14 " [F]orfeiture is the 'failure to make the timely assertion of a right[.]'"15 When a party had an opportunity to raise an issue before the lower court but simply never did, an appellate court will usually hold the issue forfeited rather than waived.16
How to Preserve an Issue for Appeal
What is needed, then, to preserve an issue for appeal? While the requirements may vary based on the specific issue, the U.S. Supreme Court has reasoned that an issue is properlypreservedfor appellate review if "the lower court [is] fairlyputonnoticeasto thesubstance of the issue."17 The general rule "does not demand the incantation of particular words"18 for the issue to be raised before the lower court. Tenth Circuit Rule 28.2(C) (2) provides that "[f]or each issue raised on appeal, all briefs must cite the precise reference in the record where the issue was raised and ruled on."19
The best practice, of course, is to avoid any potential forfeiture or waiver by sufficiently identifying all relevant issues and explicitly putting the lower court on notice. This, however, does not always occur. Accordingly, the Tenth Circuit has expanded on the general rule, addressing the many contexts in which parties may waive or forfeit issues, such as by making explicitly new arguments, new arguments related to issues raised before the trial court, vague or undeveloped arguments, or issues raised for the first time in post-trial motions. The court has held that issues raised but inadequately pursued in the lower court cannot be the basis for an appeal.20 Specifically:
■ An issue raised in an answer, pretrial order, and the court's statement about the parties' legal theories at the start of trial, but neither mentioned during the actual trial nor ruled on by the trial court, was waived and would not be considered on appeal.21
■ An issue that could be inferred from a trial exhibit, but was not discussed, was forfeited.22
■ An issue referenced in passing in pretrial pleadings and in the undeveloped testimony of one witness could not be considered on appeal.23
■ An issue mentioned in a motion, but on which no ruling was sought, and to which the appellant made only vague references at trial, was forfeited.24
When a party pursuing a particular argument "fail[ed] to raise another closely related argument,"25 the Tenth Circuit held that raising the '"related appeal point was not enough to avoid forfeiture.'"26 It has also held that a party forfeited issues related to claims not identified in a complaint.27 Similarly, issues raised in post-trial motions or hearings were deemed forfeited.28 For example:
■ An issue raised for the first time in a motion for judgment as a matter of law in a jury trial would not be considered on appeal.29
■ An issue raised for the first time in a motion for new trial and to reopen the evidence after a trial to the court would not be considered on appeal.30
■ An issue raised for the first time in a motion for reconsideration would not be considered on appeal.31
While best practices prescribe properlyraising all issues before the lower court, failure to do so does not necessarily sound the death knell for the forfeited issue. Unlike waived issues, under some circumstances reviewing courts may consider forfeited issues on appeal.32 What standard, then, do appellate courts use in determining whether to consider a forfeited issue?
Manifest Injustice Versus Plain Error Standards
Historically, the Tenth Circuit recognized its discretion to consider and reverse on the basis of forfeited legal arguments "when failure to intervene would result in a miscarriage of justice."33 More recent Tenth Circuit decisions have reformulated this "manifest injustice" standard into the plain error standard, which tracks the language of the relevant procedural rules. Federal Rule of Criminal Procedure 52(b) provides: "A plain error that affects substantial rights may be considered even though it was not brought to the court's attention." Federal Rule of Civil Procedure 51 (d) (2) provides for review of "plain error" in instructions "if the error affects substantial rights." Hence, the Tenth Circuit will reverse a lower court "on the basis of a forfeited theory only if failing to do so would entrench a plainly erroneous result."34
To show plain error, a party must establish an (1) error (2) that is plain, which (3) affects substantial rights, and (4) "seriously affects the fairness, integrity, or public reputation of judicial proceedings."[35] To be plain, an error must be clear or obvious under clearly established law.36 To affect substantial rights, an appellant must show a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.37 The fourth prong is "'formidable,'" and the Tenth Circuit will exercise its discretion to review an unpreserved error "only... when an error is particularly egregious and the failure to remand for correction would produce a miscarriage of justice.'"38
The substantive analysis under either the plain error or manifest injustice standard is nearly identical—there must be an egregious and significant error.39 Despite the various " [l]inguistic packag[es,]"40 the burden rests with the party raising a forfeited issue on appeal to "establish [] a clear legal error that implicates a miscarriage of justice."41 Thus, today the Tenth Circuit, in determining whether to consider a forfeited issue, applies a standard of review that "substantively amounts to" the plain error standard.[42]
Purely Legal Arguments
The Tenth Circuit, however, has not always been precise in its application of the plain error standard to questions involving purely legal arguments. In some decisions, the court applied what appeared to be a different, "deliberate[ly] relax[ed] "43 plain error standard, which allowed consideration of forfeited issues in circumstances involving purely legal matters where the proper resolution of the matter was certain.44 In numerous instances, the Tenth Circuit considered, and reversed based on, forfeited issues under this standard without explicitly finding plain error or manifest injustice.[45] Further, in at least one decision, the court recognized "two routes"46 for considering a forfeited issue: the manifest injustice standard and the pure legal issue standard.47 In these cases, the court reasoned that pure legal issues implicate "none of the traditional functions unique to a trial court [that] are necessary to the development of the issue."48
In 2011, however, the Tenth Circuit clarified and narrowed this standard. In Richison v. Ernest Group, Inc.,[49 the court held that, despite its prior consideration of and reversal based on pure matters of law, "no case in this circuit has [explicitly] held that we may reverse based on 'purely legal' arguments in the absence of plain error."50 "[T]he fact that this court has sometimes reversed on the basis of a new legal argument without indicating the burden the appellant must carry to obtain reversal cannot ensconce binding precedent requiring or allowing us to ignore the longstanding requirement that new legal arguments overcome plain error."[51]
It is not entirely clear whether the...
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